GZBC and Child Support Registrar (Child support second review) - [2020] AATA 359

GZBC and Child Support Registrar (Child support second review) [2020] AATA 359 (27 February 2020)
Division:GENERAL DIVISION
File Number(s): 2019/3654
Re:GZBC
APPLICANT

AndChild Support Registrar
RESPONDENT

AndGMLM
OTHER PARTY

DECISION
Tribunal:Member I Fletcher
Date:27 February 2020
Place:Perth

The decision under review is affirmed.

..........................[sgd]..............................................
Member I Fletcher
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 (Cth).
CATCHWORDS
CHILD SUPPORT – Percentage of care – pattern of care – special circumstances from lodging objection within the specified time – decision is affirmed.
LEGISLATION
Child Support (Assessment) Act 1989 (Cth) – sub-div C of div 4 part 5
Child Support (Registration and Collection) Act 1988 (Cth) – ss 87AA, 87AA(1), 87AA(2)
CASES
Gyselman, In the Marriage of, Re (1991) Fam LR 219
Parent A and Child Support Registrar [2013] AATA 562
Polec & Staker [2011] FMCAfam 959
P v Child Support Registrar (2013) 138 ALD 563
P v Child Support Registrar [2014] FCAFC 98
Re Drake v Minister for Immigration & Ethnic Affairs (No 2) (1979) 2 ALD 634

SECONDARY MATERIALS
Guides to Social Policy Law: Child Support Guide, Department of Social Services, version 1.261
REASONS FOR DECISION
Member I Fletcher
27 February 2020
DECISION UNDER REVIEW

The decision under review is the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 22 May 2019 that:
(a)Affirmed the decision of an objections officer that the Applicant had 33% care and the Other Party had 67% care of both children (the children); and
(b)Set aside the decision of the objections officer who determined there were special circumstances under s 87AA(2) of the Child Support (Registration and Collection) Act 1988 (Cth) (Collection Act) that prevented the Other Party from lodging her objection within the specified time period of 28 days.
Given the nature of the current proceedings, which is essentially a dispute between the parents as to the care provided to the children during the relevant period, the Child Support Registrar (the Registrar) considered that their role should be confined to assisting the Administrative Appeals Tribunal (Tribunal) in identifying and applying the relevant legislative provisions to the evidence. Accordingly, the Registrar did advance a position as to the findings of fact the Tribunal is called upon to make. The Applicant expressed a view at the Tribunal that the Registrar had incorrectly interpreted the Family Court Order (the Orders) in its decision. The Registrar advised the Tribunal at the hearing that the pattern of care of the children is the decision of the Tribunal based on the evidence submitted.
MATERIALS BEFORE THE TRIBUNAL
At the Hearing, the Tribunal received the following documents into evidence:
(a)
Applicant’s Statement of Facts Issues and Contentions (SOFIC), received

19 September 2019 (Exhibit A1);
(b)Applicant’s opening statement, dated 10 January 2020 (Exhibit A2)
(c)Applicant’s submission, received 10 October 2019 (Exhibit A3);
(d)Applicant’s submission, received 23 August 2019 (Exhibit A4);
(e)Applicant’s submission, received 14 August 2019 (Exhibit A5) comprising:
o2015 Western Australia (WA) school holidays and term dates;
o2016 WA school holidays and term dates;
o2017 WA school holidays and term dates;
o2018 WA school holidays and term dates;
o2019 WA school holidays and term dates; and
oAustralian Government; Attorney-General’s Department – Parenting Orders;
(f)
Respondent’s Statement of Facts Issues and Contentions(SOFIC), dated

15 November 2019 (Exhibit R1);
(g)Other Party’s submission, received 16 September 2019 (Exhibit OP1);
(h)Administrative Appeals Tribunal Order, dated 25 September 2019 (Exhibit T1); and
The Tribunal also had before it the section 37 documents (T Documents) numbered T1 to T33, pages 1 – 215). The T Documents were not exhibited.
ISSUES
The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).
The issues to be decided in the application are:
(a)whether the existing determination of percentage care should be revoked; and if so,
(i)from what date; and if so
(b)what the percentage of care under the new determination ought to be, and from what date; and
(c)the date of effect of the new determination.
BACKGROUND
GZBC (the Applicant) and the GMLM (the Other Party) are the separated parents of two children (T6, 60).
In accordance with the Orders made on 10 July 2015 (T6, 60), the existing child support assessment was based on the Applicant having 33% care of the children and the Other Party having 67% care of the children (existing care determination) (T4, 45).
On 6 February 2017 the Applicant notified the Registrar of a change in care of the children (T18, 141).
By letter dated 3 March 2017, the Registrar notified the parties that the existing care determination had been varied (T8, 66). From 1 January 2017 there was 37% care to the Applicant and 63% care to the Other Party with effect from 6 February 2017
(T7, pp 64 - 65).
By email dated 28 November 2018, the Other Party contacted the Registrar disputing the variation to the existing care determination (T26, 193). The Registrar contacted the
Other Party by phone and informed her of her objection rights. The Other Party lodged an objection over the phone (T27, 194).
By letter dated 10 December 2018, the Registrar notified the Applicant that an objection to the decision made on 3 March 2017 to vary the existing care determination had been lodged (T19, 149).
On 17 December 2018, the Applicant provided a verbal response to the objection lodged by the Other Party (T20, 151).
By email dated 3 January 2019, the Other Party provided additional evidence to the Registrar (T31, 202).
On 28 February 2019, the objections officer allowed the objection. The objections officer decided there had been no change in care and further decided there were special circumstances which prevented the Other Party from lodging her objection within 28 days and as such the date of effect was 6 February 2017 and not the date of her objection
(T9, 76).
On 27 March 2019, the Applicant applied to AAT1 for a review of the objection decision (T12, 119).
On 8 April 2019, the Applicant provided additional documents to AAT1 in preparation for the hearing (T25, 156).
By decision dated 22 May 2019, the AAT1 affirmed the objection officer’s decision that there had been no change in care. However, the AAT1 set aside the determination made under s 87AA(2) of the Collection Act and substituted it with a new decision that no special circumstances prevented the Other Party from lodging her application within the 28 day time period. The date of effect of the allowed care percentage decision is
28 November 2018 (T2, 5).
On 21 June 2019, the Applicant applied to the General Division of the Administrative Appeals Tribunal (AAT2).
By email from the Tribunal dated 14 August 2019, the Registrar received copies of further submissions from the Applicant in support of his application (Exhibit A5).
By email to the Tribunal dated 23 August 2019, the Applicant lodged a statement in support of his application (Exhibit A4).
By email to the Tribunal dated 19 September 2019, the Applicant filed additional submissions (Exhibit A1).
By email to the Tribunal dated 10 January 2020, the Applicant filed an opening statement to be made at the Tribunal hearing (Exhibit A2).
The Tribunal hearing took place on 13 January 2020. In attendance were the Applicant and Other Party who gave evidence under affirmation. Ms Underhill from Mills Oakley Lawyers represented the Registrar of the Child Support Agency.
RELEVANT LEGISLATION AND POLICY
The legislation relevant to this application is contained in the Child Support(Assessment) Act 1989 (Cth) (the Assessment Act) and the Collection Act.
Section 49 of the Assessment Act states:
49 Determination of percentage of care—responsible person has had etc. no pattern of care for a child
(1) This section applies if:
(a) either of the following applies:
(i)an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;
(ii)a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;
and the Registrar is satisfied that a responsible person for the child has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances; or
(b) both of the following apply:
(i)the determination of a responsible person’s percentage of care for a child that was made under this section or section 50 is revoked or suspended under Subdivision C of this Division, except under paragraph 54FA(3)(b) or 54HA(3)(b);
(ii) the Registrar is satisfied that the responsible person has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.
(2) The Registrar must determine the responsible person’s percentage of care for the child during the care period.
(3) The percentage of care determined under subsection (2) must be 0%, unless section 51 applies in relation to the responsible person.
(Original emphasis.)
Section 50 of the Assessment Act states:
50 Determination of percentage of care—responsible person has had etc. a pattern of care for a child
(1)       This section applies if:
(a)       either of the following applies:
(i) an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;
(ii) a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;
and the Registrar is satisfied that a responsible person for the child has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances; or
(b)       both of the following apply:
(i) the determination of a responsible person’s percentage of care for a child that was made under section 49 or this section is revoked or suspended under Subdivision C of this Division, except under paragraph 54FA(3)(b) or 54HA(3)(b);
(ii)the Registrar is satisfied that the responsible person has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.
(2)The Registrar must determine the responsible person’s percentage of care for the child during the care period.
(3)The percentage determined under subsection (2) must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.
(4)Subsection (3) does not apply if section 51 applies in relation to the responsible person.
Section 54A of the Assessment Act states:
Working out actual care, and extent of care, of a child
(1)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.
(2)The extent of care of a child that a person should have had, or is to have, under a care arrangement during a care period may be worked out based on the number of nights that the child should have been, or is to be, in the care of the person during the care period under the care arrangement.
(3)For the purposes of this section, a child cannot be in the care of more than one person at the same time.
(4)This section does not limit section 50, 51, 53B or 54.
(Original emphasis.)
Section 54B(1A) of the Assessment Act states:
Days to which the percentage of care applies if section 51 did not apply etc. in relation to a responsible person
…
(1A) The percentage of care applies to each day in a child support period on and from the application day until the determination is revoked, or the earlier determination ceases to be suspended, under Subdivision C of this Division.
…
Section s 87AA of the Collection Act states:
Date of effect of objections relating to care percentage decisions that are allowed
(1) If:
(a) a person lodges, under section 80A, an objection to a care percentage decision; and
(b)the objection is lodged more than 28 days or, if the person is a resident of a reciprocating jurisdiction, 90 days after notice of the care percentage decision was served; and
(c)the Registrar decides (the review decision), under section 87, to allow the objection in a way that has the effect of varying the determination to which the care percentage decision relates, or substituting a new determination;
the date of effect of the review decision is the day on which the person lodged the objection.
(2) If the Registrar is satisfied that there are special circumstances that prevented the person from lodging the objection within the period referred to in paragraph (1)(b), the Registrar may determine that subsection (1) applies as if:
(a)in a case where the person is a resident of a reciprocating jurisdiction—the reference to 90 days in that paragraph were a reference to such longer period as the Registrar determines to be appropriate; or
(b)otherwise—the reference to 28 days in that paragraph were a reference to such longer period as the Registrar determines to be appropriate.
…
There is also policy relevant to this application contained in the Guides to Social Policy Law: Child Support Guide, Department of Social Services (the Guide). The Guide should be taken into account unless there are cogent reasons not to do so (see ReDrake v Minister for Immigration & Ethnic Affairs (No 2) (1979) 2 ALD 634).
CONSIDERATION
Issue 1 – Should the existing determination of percentage of care be revoked? If so, from when should it be revoked?
Section 50 of the Act requires the Department to determine a person's percentage of care where a person has had, or is likely to have a pattern of care for a child for the care period. The percentage of care so determined must be a percentage that corresponds with the actual care of the child.
Section 54A of the Act sets out that actual care of a child that a person has or is likely to have may be worked out on the number of nights. A new percentage of care can be determined by the Child Support Agency whenever the care of a child has changed pursuant to sections 54F, 54G and 54H of the Act.
In this matter the original care determination had been based upon orders made in the Family Court dated 10 July 2015. In summary those orders provided that the children were to live with the second party and that the applicant was to have care of the children:
(a)Each alternative weekend from Friday to Tuesday morning (four nights)
(b)Alternate Christmas day – collect on 24 December and return on 25 December (one night)
(c)On a week about basis during school term holidays
(d)For 2015 and 2016 Christmas holidays on a week about basis
(e)From Christmas holidays 2017 ceasing the week about arrangement and instead having shared care for half of the holidays as a block of time.
The Applicant told the Tribunal that the effect of the Court Orders meant that the change in care from week about to block care from Christmas holidays 2017 meant that he now had increased care. It appears from the Department documents, the applicant contacted the Department on 6 February 2017 and advised that ‘new court order states that he will have every second Friday, Saturday, Sunday and Monday and half the school holidays.’ (T18, 141). The Tribunal notes that in actual fact there were no ‘new ‘Court Orders. The Applicant in submissions made to the Tribunal says that his care effectively increased from a minimum of 128 nights to a minimum of 131 nights per annum after 1 January 2017.
The Other Party told the Tribunal that there had been no change in care as they were following the Court Orders and that the change over Christmas still resulted in shared care over that period it was just that the manner in which the care took place changed. She said that when she spoke to the Department about why they had implemented a change in care they advised that there had been an error in the calculation of nights because the officer had included the four nights of care that the Applicant had over the school term in addition to the nights of care he had over the holidays.
The existence of a court order in respect of prevailing care arrangements for a child is relevant insofar as it may well be reflective of the actual care that is occurring. It is not the case that the Registrar is required to record care to each parent in accordance with a court order.
Both parties challenged each other as to the accuracy of their diary records of care. The Applicant asserted that by not returning the children at the required time could distort the true pattern of care. However, the Tribunal noted that the Other Party made the comment that she had to take out several court orders to have the children returned from the Applicant. One court order dated 11 April 2017 was included as an attachment to the Other Party’s submission to the AAT2 (OP1, 18).
The legislative scheme requires in relation to care change, any new care percentage determination to be made following notification to the Department of a change in the care arrangement. The primary decision-maker is required to assess the actual or likely pattern of care, by reference to an appropriate care period, to determine whether to revoke the existing care determination and make a new one. The Tribunal is required to do the same task on review.
The legislation requires a percentage of care for a parent to be determined on the pattern of care that a parent has had or is likely to have for a child in a care period. This pattern of care can be established either according to a care arrangement or the actual care that is taking place. The Tribunal is first required to consider whether the existing determination must be revoked and if so what the new determination should be.
The Department essential task as the primary decision maker was to consider any pattern of care based on actual care to the time of notification and likely care thereafter (for an appropriate care period). In this respect, on review it is not appropriate, in undertaking that task, to assess care based on what happened from initial notification to the Child Support Agency up to the time of this Tribunal’s hearing, and evidence as to care for this period is not likely to be relevant.
In looking back at February 2017, there appears to be no departure from the prevailing pattern of care. The Applicant advised the Tribunal at the hearing that there was a period of about 15 months where his percentage of care was 33 per cent and the Other Person’s was 67 per cent. The pattern of care is usually determined over a period of twelve months.
The Tribunal is satisfied that based on the Court Orders the Applicant has had a pattern of care which results in about 120 nights per year and the Other Party has care of 245 nights per year. The Applicant asserts that the Court Orders have not been complied with and that he has had issues with the Other Party in this regard a view which is disputed by the Other Party. The Tribunal was satisfied on the evidence presented that this is not a matter in which care has been withheld and that the Court Orders properly provide the basis for the calculation of care.

The Tribunal was satisfied on the presented evidence that there was an existing determination in place pursuant to section 50 of the Act (prior to the applicant advising of a change in care) by which the applicant had 33% care and the second party had 67% care. On the basis of the evidence before the Tribunal at the hearing, it finds that there was no change in care. The Tribunal therefore concluded that as such there is no basis to revoke the existing percentage of care as there has been no change in the pattern of care relevant to the children. As a result there is no need for the Tribunal to consider whether a new care determination should apply.
Issue 2 – What is the date of effect of the decision?
This issue was raised by the Applicant at the AAT1 hearing. He said that he objected to the Department’s conclusion that special circumstances prevented the Other Party from lodging her application within 28 days and that the Department was wrong to exercise the discretion that arises under subsection 87AA(2) of the RC Act.
The Other Party said that at the time the Department made the decision to change the percentage of care she accepted that they had calculated the nights correctly. It was only when she subsequently was experiencing financial difficulties due to having to pay child support herself that she contacted the Department. It was at this point that it became apparent that the Department had made an error and so she was advised to lodge an objection.
The Department documents confirm that Applicant and the Other Party were both sent a notice of decision on 3 March 2017 which set out their objection rights and the requirement to lodge an objection within 28 days from the date of receipt of the decision notice. The Other Party said that she did speak to someone about the decision at the time but was told that the care percentage had been calculated correctly and she accepted this. There is no record however of any contact being made by the Other Party about the decision until 28 November 2018 and, consistent with evidence at the hearing, the record of that contact notes that the second party was expressing financial concerns.
The Department record notes the Other Party applied for ‘special circumstances’ on the basis that she was ‘bombarded with all the calculations and percentages by letter. ’I trusted the agency had worked it out correctly, they haven’t, they have calculated it incorrectly, the agency has made an error’.
Section 87AA of the RC Act provides that if a person objects to a care percentage decision more than 28 days after the person was served with a notice of the decision, the decision has effect from the date the person lodged the objection. Subsection 87AA(2) provides an exception to that general rule if the objections officer is satisfied that there are special circumstances that prevented the person from lodging the objection with 28 days then they may determine that the section applies as if they had objected within time.
The legislation does not define special circumstances, but the Family Court in Gyselman, In the Marriage of, Re (1991) Fam LR 219, 225 has held: ‘…as a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary’. The Guide at 4.1.8 notes that:
The applicant must show that their particular circumstances prevented them from lodging an objection within the required timeframe…some examples…may include:
• the parent was seriously ill or had an accident…
• the parent suffered a personal trauma such as a death in the family or a natural disaster that caused damage to the parent's property
• the parent had communication difficulties, including isolation, illiteracy or poor English-language skills
• the parent reasonably relied upon inaccurate or misleading information.
In this matter the Department concluded that because the Other Party stated that she had relied upon the Department correctly calculating the care this constituted special circumstances as she relied upon inaccurate information. The relevant question however is whether special circumstances prevented the second party lodging her application within 28 days.
The Tribunal does not find any evidence in support of such a conclusion.
By her own admission the Other Party stated that what prompted her objection was the financial impact of having to pay child support herself. The notice of decision received on 3 March 2017 made clear that a person can object if they think the Department’s decision was incorrect – there is no evidence of this happening within the 28 day period. The Other Party has consistently asserted that there had been no change in care and that the Court Orders as made in 2015 continued in effect. That being her position it would make little sense for there to be a change in the care percentage as initially determined by the Department. For the Other Party to state then that she simply accepted the recalculated percentages without challenge in such circumstances is difficult to reconcile with the evidence.
In the Tribunal’s view there were no special circumstances which prevented the second party from lodging her application within the mandated 28 days and as such the date of effect of the allowed care percentage decision is the date the objection was made, namely 28 November 2018.
Request for an extension of time
At the Tribunal hearing, Ms Maleah Underhill from Mills Oakley Lawyers, representing the Registrar, requested that the Tribunal agree to an extension of time in order for her to seek instructions from the Child Support Registrar as to when any percentage of care decision ought to be applied in accordance with s 87AA(2) of the Collection Act, if there is a revocation of an earlier decision. The Tribunal agreed to this request in the interests of procedural fairness.
The advice was received from Mills Oakley Lawyers representing the Registrar on
19 February 2020. However, it did not have to be taken into consideration as there was no revocation of the previous decision.
General comment
The Tribunal notes the email communication by the Applicant on 24 February 2020 regarding the consideration of all the merits and facts allegedly not considered in the objection and AAT1 decisions. At the current Tribunal hearing and in the subsequent decision making process the Tribunal has considered all the evidence before it.
DECISION
The decision under review is affirmed.

I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Member I Fletcher

...........................[sgd].............................................
Associate
Dated: 27 February 2020

Date(s) of hearing: 13 January 2020

Applicant: In person

Counsel for the Respondent: Ms Maleah Underhill

Solicitors for the Respondent: Mills Oakley Lawyers

Other Party: In person

Date(s) of hearing:	13 January 2020
Applicant:	In person
Counsel for the Respondent:	Ms Maleah Underhill
Solicitors for the Respondent:	Mills Oakley Lawyers
Other Party:	In person