MMZG and Child Support Registrar (Child support second review)
[2021] AATA 2619
•30 July 2021
MMZG and Child Support Registrar (Child support second review) [2021] AATA 2619 (30 July 2021)
Division:GENERAL DIVISION
File Number(s): 2020/4450
Re:MMZG
APPLICANT
AndChild Support Registrar
RESPONDENT
AndZVSD
OTHER PARTY
DECISION
Tribunal:Member P Ranson
Date:30 July 2021
Place:Brisbane
The Tribunal sets aside the decision in AAT1 and in substitution decides for the period 28 November 2018, and until a change of circumstances warrants a change (but no earlier than 31 January 2021), the care percentage of the Daughter is 41% to MMZG and 59% to ZVSD commencing on 28 November 2018.
.........[SGD].......................................................
Member P Ranson
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 – care percentage decision – where parents agree as to percentage of care – where objection filed outside 28 day period – whether Tribunal prevented from considering date of effect – whether special circumstances prevented lodging of objection within time – special circumstances shown – decision set aside and substitutedLegislation
Child Support (Assessment) Act 1989
Child Support (Registration & Collection) Act 1988
Administrative Appeals Tribunal Act 1975
Cases
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
YXVZ and Child Support Registrar [2020] AATA 4802
Secondary Materials
Guides to Social Policy Law, Child Support Guide, Version 4.57, released 1 July 2021
REASONS FOR DECISION
Member P Ranson
30 July 2021
BACKGROUND
The Applicant (MMZG) and the Other Party (ZVSD) are the separated parents of a daughter was born in 2008 (the Daughter). Her care has been shared between her parents since separation. The care is mostly in accordance with court orders made in 2012, viz, 58/42 in favour of ZVSD, but sometimes more to ZVSD depending on MMZG’s prevailing circumstances. ZVSD and MMZG both provide a home for the Daughter when she is in their care. MMZG is the Daughter’s father, and ZVSD is the Daughter’s mother.
The orders of the then Federal Magistrates Court concerning care of the Daughter, made in 2012, required MMZG to have five nights of care per fortnight during school terms and half the school holidays. In practice, the parents applied those orders with the first five nights for MMZG commencing in the first week of a new school term regardless of whether his time in the proceeding school holidays was the first or second half. That results in a care determination of 58% to ZVSD and 42% to MMZG.
In addition to the child support implications that arise from the appropriate percentage of care, ZVSD and MMZG both claimed FTB at different times and in different percentages, which are affected by the assessed care. The earlier years’ care percentages are relevant to this decision in that the parents acted in accordance with the court orders and the care was 58% to ZVSD and 42% to MMZG. That situation continued until 28 November 2017 when MMZG’s circumstances changed temporarily, and the assessed care became 63% to ZVSD and 37% to MMZG.
The Child Support Registrar (the Respondent)[1] and the Tribunal have made decisions at various times about the care arrangements for the Daughter. Following a decision of the Social Security and Child Support Division of this Tribunal (AAT1), the current position is recorded as 39% to MMZG and 61% to ZVSD. MMZG disagrees with that decision and seeks a review of it.
[1] Part of Services Australia formerly the Department of Social Services.
PROCEDURAL HISTORY
The decision under review was made by AAT1 on 12 June 2020 which affirmed a decision reflecting that care for the Daughter was to be recorded as 61% to ZVSD and 39% to MMZG from 28 November 2018.
The Hearing for this current application was held before this Tribunal on 10 June 2021 (the Hearing). MMZG and ZVSD attended the Hearing, together with Ms Smith representing the Respondent. The video hearing was facilitated using Microsoft Teams. Both MMZG and ZVSD gave affirmed evidence. No other witnesses were called.
The Respondent identified the issues to be decided as follows:
(a)What percentage of care should be attributed to MMZG and ZVSD for the Daughter for the period from 28 November 2018; and
(b)What the date of effect should be of the care determination?
The following documents were admitted into evidence:
Number
Description
Exhibit 1
Section 37 T-Documents of 193 pages
Exhibit 2
Respondent’s Statement of Facts, Issues and Contentions of 17 pages including Attachment A being a care window for 2015 to 2017 and file notes.
Exhibit 3
Assessment notice of 3 pages.
Exhibit 4
Applicant’s calendar of care for the years 2018 to 2021 of 4 pages.
Exhibit 5
Applicant’s written submissions of 8 pages
Exhibit 6
Letter of 2 pages dated 21 November 2012 from the Federal Magistrates Court of Australia.
Exhibit 7
Other Party’s response of 1 page to the second review application.
Exhibit 8
Other Party’s calendars of care for 2018 to 2021 inclusive of 4 pages
Exhibit 9
Other Party’s written submission of 4 pages
Exhibit 10
Respondent’s post-hearing submission of 4 pages dated 24 May 2021.
Exhibit 11
Applicant’s supplementary submission of 6 pages dated 31 May 2021.
Prior to the Hearing, all parties were provided with an Exhibit List showing Exhibits 1 to 9. Exhibit 10 and Exhibit 11 were received after the Hearing and were provided to all parties.
The Respondent’s Statement of Facts, Issues, and Contentions dated 19 November 2020 (the Respondent’s SFIC) sets out in detail the law which is relevant to this case with which the Tribunal concurs. As a copy of the SFIC and its attachments were provided to MMZG and ZVSD, prior to the hearing, that law will not be reproduced in this decision other than to confirm the relevant legislation is contained in:
·Child Support (Assessment) Act 1989 (Cth) (the Assessment Act).
·Child Support (Registration & Collection) Act 1988 (Cth) (the Collection Act)
·Administrative Appeals Tribunal Act 1975 (AAT Act)
The Respondent’s SFIC also refers to the Child Support Guide (the Guide) and especially Chapter 2.2.[2] The Tribunal notes that, where a general policy exists to guide the decision maker in exercising its powers, the Tribunal “will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision … cogent reasons will have to be shown against its application”.[3] The Tribunal considers that there are no pressing reasons to depart from the policy outlined in the Guide.
[2] See Guides to Social Policy Law, Child Support Guide, Version 4.57, released 1 July 2021
[3] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645 (Brennan J).
At the end of the Hearing, Ms Smith drew the Tribunal’s attention to a decision by the Tribunal, differently constituted, and its possible effect on the date of effect decision in this case.[4] Exhibit 10 is the Respondent’s submission about that case. Exhibit 11 is MMZG’s response to that submission.
[4] YXVZ and Child Support Registrar [2020] AATA 4802.
The Tribunal has considered all the material supplied to it and the oral evidence of the MMZG and the ZVSD. Not all the evidence is referred to at length in this decision. That does not mean it has not been considered in determining the outcome. It is sometimes unnecessary to canvass all aspects, arguments, and history of a case.
THE FACTS AND EVIDENCE
Orders of the Federal Magistrates Court of Australia
On 13 September 2012, the then Federal Magistrates Court of Australia made orders concerning the care of the Daughter. Those orders specified, inter alia, the Daughter would live with ZVSD unless she was ‘spending time with’ MMZG. Once she attended school, the Daughter was to spend five nights per fortnight during school terms with MMZG and half of the school holidays. The parents abided by these orders and as discussed above at [4] they mutually agreed the five nights during school terms for MMZG would always commence in the first week of the new school term regardless of who had care of the Daughter during the last week of the previous holidays. This results in a theoretical pattern of care of 58% to ZVSD and 42% to MMZG.
Agreed changes to the pattern of care
MMZG’s evidence is the care arrangement discussed above applied until 28 November 2017 after which, and for a specific time period, he was not able to maintain that level of care and the percentages were changed by the Respondent to 63% to ZVSD and 37% to MMZG. MMZG unsuccessfully challenged this decision which applied until 28 November 2018. From 28 November 2018 MMZG says he was able to resume the care arrangements contemplated by the court orders and notified Centrelink to revert to 58% to ZVSD and 42% to him.
According the Respondent’s SFIC, on 17 December 2018 MMZG notified Centrelink there had been a change in care such that the 58:42 arrangement should be reinstated saying the care percentages should be the same as when the court orders were followed from 2015 to 2017.
It is possible Centrelink misunderstood MMZG when he said there had been no change of care and the percentages should revert to those of court orders as interpreted by the parents as Centrelink, at that time, refused to make the change because they said there was no change of care.
Subsequently, on 20 September 2019, Centrelink made a new care determination which reflected that the care of the Daughter had changed on 28 November 2018. That determination changed the care to 61% to ZVSD and 39% to MMZG (the 2019 Care Decision). MMZG objected to that decision on 12 November 2019 claiming his percentage should be 43% (the 2019 Care Objection). His objection was disallowed on 16 April 2020 and so MMZG applied to the AAT1 for a review of that decision. On 12 June 2020, the AAT1 affirmed the objection decision after which MMZG applied to the General Division of this Tribunal for a further review.
Calendars of care
Both parents provided calendars of care for the Daughter for the period 28 November 2018 to approximately February 2021. MMZG did so in his first submission however it was unclear to the Tribunal exactly what his markings referred to. MMZG was asked to further clarify the matter, and did so.
At the hearing, the differences in calendars of care was canvassed by the Tribunal with the parties. It became apparent both parents had completed their calendar based on the nights the Daughter should have been in their overnight care rather than the actual nights of overnight care. Mostly, but not always, the actual and the theoretical are the same. MMZG made the point he was sometimes away for work purposes when the Daughter was to be with him, and he could arrange for the Daughter to stay with friends. ZVSD refuses to accept that arrangement stating the Daughter must be with her if she cannot be with her father. The Tribunal considers that position to be consistent with the court orders which say at clause (4):
‘That the child live with the Mother at all times other than those that the child is spending time with the Father pursuant to orders (5), (6) and (7) herein.’
In any event, the Tribunal analysed both calendars and came to a preliminary view that the percentages of care were 41% to MMZG and 59% to ZVSD. These percentages were arrived at by rounding down the result if less than 50% and rounding up if the result if more than 50%.
The Tribunal asked both MMZG and ZVSD whether they accepted those percentages applied between the dates 28 November 2018 to 31 January 2021. Both parties ultimately agreed that was the case.
The Tribunal notes that there was some expectation that the care between the parties may change in late January 2021, because the Daughter was due to begin secondary schooling. It was anticipated that she would have one additional week of school holidays per year. Though that issue is not before the Tribunal, it remained open to MMZG and ZVSD to update the Respondent as to the shared care of the Daughter once that change took place. It may be that the cost percentage changes as a result, but that is not an issue that the Tribunal is required to consider.
Given that the allocation of care of the Daughter as 41% to MMZG and 59% to ZVSD was no longer in dispute between the parties, and that the Tribunal is satisfied that the care percentage is correct, the Tribunal now turns to the issue of when the percentage of care decision comes into effect.
As the Tribunal finds the percentage of care for the Daughter was 59% to ZVSD and 41% to MMZG from 28 November 2018, the determination made by the Registrar must be revoked, because the cost percentage for the parties has changed (see s 54F of the Assessment Act). The Registrar contends the Tribunal must also make a decision under s 43(6) of the AAT Act and s 87AA of the Collection Act as to the date of effect of the new percentage of care. This is the issue identified at paragraph 7(b) above.
Section 43(6) deals with a decision by the Tribunal which varies or substitutes a decision made by the Registrar. When that occurs, the Tribunal’s decision is deemed to be a decision of the Registrar and, unless the Tribunal otherwise orders, comes into operation on and from the day on which the decision under review, viz, the Registrar’s decision, has or had effect.
Neither the Registrar, nor the AAT1 made a finding as to the date of effect of a new percentage of care. The Registrar disallowed MMZG’s objection, and the AAT1 affirmed the Registrar’s decision. As the Tribunal has determined that a new percentage of care exists, the Tribunal must now decide the date of effect of those arrangements.
Final submissions
As mentioned above, Ms Smith sought leave to make a post-hearing submission concerning the date the change of care commences. MMZG and ZVSD were afforded time to respond to that submission. MMZG did respond, but ZVSD did not. Two issues arise from those submissions. The first is whether the Tribunal is prevented from considering the date of effect on jurisdictional grounds. The second issue, assuming that the Tribunal has jurisdiction to consider that question, is whether MMZG objected to the Respondent’s decision within 28 days and the consequences that follow.
Do the findings in YXVZ and Child Support Registrar [2020] AATA 4802 apply?
The decision referred to in Exhibit 10 is YXVZ and Child Support Registrar [2020] AATA 4802 (YXVZ). The Tribunal (differently constituted) found it did not have jurisdiction to consider the commencement date of a care decision. In that case, a decision as to the date of effect of a care change had been made under s 87AA of the Collection Act at the objection stage. The Registrar had already rejected that special circumstances existed, and that decision was not reviewed at the AAT1. The Tribunal found it did not have jurisdiction to deal with the date of effect issue because the Tribunal’s jurisdiction was limited to what had been reviewed by the AAT1.
The Registrar noted and the Tribunal agrees there is a clear difference between YXVZ and this decision. In YXVZ a determination was made by an objection officer under s 87AA and was not reviewed by the subsequent Tribunal decision. In this matter, no date of effect decision was made or reviewed in either the 2019 Objection Decision or before the AAT1.
Accordingly, the jurisdictional issue in YXVZ does not apply in this case.
Was the Objection Filed in Time?
This issue concerns whether MMZG objected to the decision within 28 days. The Respondent summarises the facts as follows:
‘On 17 December 2018, the Applicant notified the then Department of Human Services (the Department) that there had been a change in care. The Applicant told the Department that the care percentage should be the same as the care from the previous care decision (care from 28 November 2017). The departmental officer advised the applicant that she could not accept the new care notification because the care had not changed.
On 5 July 2019, the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) made a care decision for the period starting 28 November 2017. Although the matter was not before the AAT1, it stated in its reasons that it was arguable that the contact made by the applicant on 17 December 2018 was a notification of a change in care on 28 November 2018.
In response to the AAT1’s decision, the Department decided to make a new care decision on 20 September 2019 for the period starting 28 November 2018. As the notification date (17 December 2018) was within 28 days from the change in care (28 November 2018), the change in care commenced from 28 November 2018.
The Applicant objected to the decision on 12 November 2019. His letter states that he received the new care decision on 10 October 2019. Under s87AA of the Collection Act, if an objection is lodged more than 28 days after notice of the care decision was served, and the care decision is varied, the date of effect of the review decision is the day on which the objection was lodged. If the Registrar is satisfied there are special circumstances that prevented the person from lodging the objection within 28 days, the Registrar may determine a period longer than 28 days applies.
On 16 April 2020, an objection officer within Services Australia (the Agency) made a decision to disallow the objection. Accordingly, there was no need to make a special circumstances determination under s87AA of the Collection Act.
The AAT1 application was lodged within 28 days of the objection decision and therefore the AAT1 did not need to consider making a date of effect decision under s95N of the Collection Act. No other date of effect decision was required to be made by the AAT1 as the AAT1 decided not to vary the care decision.
At the hearing on 10 May 2021, the applicant and other party agreed to a decision being made that from 28 November 2018, the applicant had 41% care and the other party had 59% care of the child. As this will result in a change in care decision being made and the objection was lodged outside of the 28 days, the Registrar contends that this Tribunal also needs to make a determination of the date of effect of this.’
In summary, the AAT1 decided on 5 July 2019 to make a new care decision in a related matter not presently before the Tribunal (Original AAT1), which it found commenced on 28 November 2017. However, of relevance to the issues presently before this Tribunal, it also noted at [12]: ‘It is at least arguable that if there was a change in care, it occurred on 28 November 2018 …’.
Following Original AAT1, the Department made the 2019 Care Decision. MMZG says he received the notice of the 2019 Care Decision on 10 October 2019 amongst a bundle of 12 letters from the Department, which included nine care decisions. He lodged a global objection to all 12 letters, and the nine decisions that day (10 October 2019) (the 2019 Global Objection), which also included an application for an extension of time to formally object to the 12 letters and the nine decisions.
MMZG’s 2019 Care Objection is dated 6 November 2019 and was received by the Department on 12 November 2019. The Department considers 12 November 2019 as the lodgment date for the 2019 Care Objection, because until the Department receives an objection it cannot be regarded as lodged.
In exhibit 11, MMZG states at paragraph 15:
‘On 10 October 2019, the Applicant [MMZG] received twelve (12) items of correspondence dated 20 September 2019 regarding nine (9) separate Child Support Assessments for the period 6 March 2017 to 20 February 2020.’
He continues at paragraph 16 to say:
'On 10 October 2019, the Applicant wrote to the Child Support Agency to “formally give notice that I object to each and every assessment contained in all twelve items of correspondence and the nine separate assessments.’
Is the 2019 Global Objection a valid objection?
The 2019 Global Objection was short on detail and did not make specific reference to any of the nine decisions including the 2019 Care Decision. A valid objection must state or give fully and in detail the grounds relied upon.[5] The 2019 Global Objection did not do that. Instead, it simply identified that MMZG had received the letters, that he objected to them, but that he may require further time to outline his reasons. By its own terms, the 2019 Global Objection cannot be a satisfactory objection. As the ARO said in the reasons for the 2019 Care Decision: ‘On 16 October 2019, we received [MMZG’s] notification of his intention to object to our decision of 20 September 2019.’[6]
[5] Child Support (Registration and Collection) Act 1988, s 84.
[6] Exhibit 1, T Documents, T14, 138.
MMZG says the volume of letters and decisions received together meant he could not reasonably make a competent objection in the timeframe allowed. Nonetheless, the Tribunal finds the 2019 Global Objection is not a valid objection, but is rather a notification of his intention to object, because it did not include the mandatory information. Accordingly, the Tribunal cannot conclude that the 2019 Global Objection satisfies the time requirement under s 87AA of the Collection Act.
Objection timeframe
The 2019 Care Decision was dated 20 September 2019. Section 163(1) of the Evidence Act 1995 (Cth) (the Evidence Act) provides a letter sent by pre-paid post from a Commonwealth agency is presumed to have been sent on the fifth business day following the date of the letter, viz, 30 September 2019.[7] Section 160(1) of the Evidence Act allows seven working days for delivery of a letter to a specified address in Australia.[8] Delivery of the 2019 Care Decision to MMZG in Cairns is presumed to be 9 October 2019.[9]
[7] The letter was sent from the Melbourne office of Centrelink. There was a public holiday in Melbourne on 27 September 2019.
[8] A working day means a day that is not a Saturday or a Sunday or a public or bank holiday in the place to which the postal article was addressed.
[9] Monday 7 October 2019 was a public holiday in Queensland.
MMZG submitted he received the 2019 Care Decision on 10 October 2019 amongst a bundle of letters containing nine separate decisions. The Tribunal notes that the Applicant’s submission is broadly in line with what is expected under the statutory timeframes outlined above. In the absence of any evidence to the contrary, the Tribunal accepts all 12 letters were received together on 10 October 2019.
28 days from 10 October 2019 is 7 November 2019. The 2019 Care Objection is dated 6 November 2019. However, it was received by the Department on 12 November 2019, that is, outside the statutory 28-day time period allowed for objections.
That alone, however, does not mean that further time cannot be afforded to MMZG. Section 87AA(2) of the Collection Act permits the Tribunal to determine an objection period longer than 28 days if the decision maker is satisfied that special circumstances prevented MMZG from lodging the objection within the 28 day period.
Are there any special circumstances?
Given s 87AA(2)(b) of the Collection Act allows 28 days to object to a decision, the Tribunal considers it unreasonable to expect 12 letters, including nine decisions, to be adequately assimilated and objections prepared within 28 days, given the abundance of information which arrived at one time. That is particularly so when an individual receiving only one decision would be afforded the same amount of time.
Accordingly, the Tribunal finds there are special circumstances and grants an extension of time to 12 November 2019 for MMZG to formally object to the 2019 Care Decision, which means his 2019 Care Objection was received within the requisite timeframe.
When did the change of care commence?
It is uncontroversial MMZG contacted the then Department of Human Services on 17 December 2018 and advised there had been a change in the pattern of care, being a return to the previous care arrangements as set out in the court orders, albeit his description of the change may have been confusing to the officer at Centrelink with whom he spoke. Given that the parties now agree as to the percentage of care, and when that change took place, the Tribunal finds that MMZG’s contact was a notification to the Registrar that a change of care had taken place.
The Tribunal therefore finds the change of care to 41% for MMZG and 59% for ZVSD commenced on 28 November 2018 because:
(a)MMZG notified the Department on 17 December 2018 of the change of care which commenced on 28 November 2018;
(b)MMZG and ZVSD have agreed on the care percentage to apply from 28 November 2018; and
(c)the Tribunal has found there were special circumstances which warrant granting an extension of time to lodge the 2019 Care Objection.
SUMMARY OF FINDINGS
The issues in this case are what were the care arrangements for the Daughter which commenced on 28 November 2018, and when do those arrangements take effect?. MMZG identified the care period commencing 28 November 2018 and he and ZVSD have agreed about the percentage of care to apply between that date and 31 January 2021. The Tribunal has found special circumstances allow MMZG’s objection decision to be lodged after the statutory time allowed of 28 days, which means the change of care on 28 November 2018 can take effect as from that date.
DECISION
The Tribunal sets aside the decision in AAT1 and in substitution decides for the period 28 November 2018, and until a change of circumstances warrants a change (but no earlier than 31 January 2021), the care percentage of the Daughter is 41% to MMZG and 59% to ZVSD commencing on 28 November 2018.
I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Member P Ranson
.......[SGD].................................................................
Associate
Dated: 30 July 2021
Date(s) of hearing: 10 May 2021 Date final submissions received: 1 June 2021 Applicant: In person Solicitors for the Respondent: Donna Smith, Services Australia Other Party: In person
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