Mother and Child Support Registrar (Child support second review)

[2024] AATA 1149

Mother and Child Support Registrar (Child support second review) [2024] AATA 1149 (17 May 2024)

Division:GENERAL DIVISION

File Number(s):      2021/5854 & 2023/4888

Re:Mother  

APPLICANT

AndChild Support Registrar

RESPONDENT

AndFather

OTHER PARTY

DECISION

Tribunal:Member Lee Benjamin

Date:17 May 2024

Place:Brisbane

The decision under review is set aside and substituted with a decision that:

(1)The percentages of care for the Children are 43% to the Father and 57% to the Mother with effect from 17 May 2021; and

(2)There were no special circumstances preventing the Father from lodging his review application to the Social Services and Child Support Division of the Administrative Appeals Tribunal in time.

..................................[SGD].............................

Member Lee Benjamin

Catchwords

CHILD SUPPORT – Review of decision of Social Services and Child Support Division –  whether existing percentage of care determination should be revoked – what percentage of care determination should be in place – where Tribunal considered differing calculations of Mother and Father – where Father did not establish special circumstances to lodge application to General Division of Tribunal – decision set aside and substituted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Electronic Transactions Act 1999 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Child Support (Assessment) Regulations 2018 (Cth)

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

Cases

Child Support Registrar v BKCZ [2023] FCA 1109

Parent A and Child Support Registrar [2013] AATA 562

Names used in this published decision 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.

REASONS FOR DECISION

Member Lee Benjamin

17 May 2024

WHAT IS THIS DECISION ABOUT?

1. The Mother and Father are in dispute about the extent to which both parents provided care for their two children for the period 9 November 2020 until 17 April 2021 (Relevant Care Period). The Mother contends that there was no change to the pattern of care for the Relevant Care Period, such that the existing care determination (71% to the Mother and 29% to the Father) should remain in effect. On the other hand, the Father submits that there was a change to the pattern of care for the Relevant Care Period, such that the existing care determination should be revoked and replaced with a new care decision which would give him between 41% to 45% care of the children. The key question for the Tribunal is what does the parties’ evidence substantiate in relation to the actual care of the children in the Relevant Care Period?

2. In my view, the evidence points to there being a change to the existing care pattern, such that the actual care of the children was 43% to the Father and 57% to the Mother over the Relevant Care Period. I further find that the date of effect of the decision is 17 May 2021, being the date on which the Father lodged his review application to the Social Services and Child Support Division of the Tribunal (AAT1), which was three days late. I consider there were no special circumstances preventing the Father from lodging his review application to the AAT1 in time.

   WHAT HAPPENED?

3. The Mother and Father are the separated parents of Child 1, born in 2011 (C1) and Child 2, born in 2012 (C2) (collectively, the children).[1]

   [1] The Respondent’s Statement of Facts, Issues and Contentions helpfully sets out what appears to be the uncontested background facts in the matter. A modified version has been extracted and reproduced here (see Exhibit R1, p 3-5, para 7-26).

4. From 7 January 2018, the percentage of care determinations in effect in respect of the children were 71% to the Mother and 29% to the Father (the existing percentage of care determinations).

5. On 9 November 2020, the Family Court of Western Australia (FCWA) made parenting orders providing for the time the parties were to spend with the children (the Order).

6. On 7 December 2020, the Father notified Services Australia – Child Support (the Agency) that there had been a change in the care of the children. The Father stated that in accordance with the Order he had 165 nights per year, or 45% care of the children, with effect from 9 November 2020.

7. On 22 December 2020, the Mother informed the Agency that she did not agree with the Father, and that his level of care was a maximum of 101 nights per year under the Order.

8. On 23 December 2020, the Agency made a decision that refused to revoke the existing percentage of care determination (the original decision). The officer found there was not enough evidence to substantiate there had been a change in the care of the children.

9. On 6 January 2021, the Father lodged an objection to the original decision on the basis that the Order had been incorrectly interpreted.

10. On 16 April 2021, an objections officer disallowed the objection (the objection decision). The objections officer was not satisfied that the care had changed significantly from the existing level of care. Notice of the objection decision was sent to the Father on the same day electronically via his Child Support Online Account. In having provided his consent to receive notices electronically, the Father is deemed to have received the objection decision at the time it was capable of being retrieved under the Electronic Transactions Act 1999 (Cth), ss 9(1)(d) and 14A(1)(a); as well as the Child Support (Assessment) Regulations 2018 (Cth), reg 19(1)(a)(iii). Accordingly, any application for review was required to be lodged by 14 May 2021 (28 days later) under s90 and s95N(1) of the Child Support (Registration and Collection) Act 1988 (Cth).

11. On 17 May 2021, the Father lodged an application for first review of the objection decision in the AAT1. This application was made three days out of time.

12. Section 95N of the Collection Act provides that if the application for first review was made outside the period prescribed for making a valid application, then the decision as varied or substituted by the AAT1 is taken to have effect from the date of application for first review (which is relevantly 17 May 2021). The exception to the date of effect is if the AAT1 is satisfied there were special circumstances that prevented the application from being made on time: s 95N(2). In that case, the reference to 28 days in s 95N(1) can be “such longer period as the AAT determines to be appropriate”: s 95N(2)(b) of the Collection Act.

13. On 28 May 2021, the Father advised the AAT1 of a further change in care of the children following the relocation of the Mother and the children to Queensland on 18 April 2021 (the May 2021 notification). The Mother disputes the Father’s evidence and says that the relocation date was on 17 April 2021.[2]

    [2] Exhibit M1, p 2, para 8. The Mother has provided evidence that substantiates that the children moved to Queensland on 17 April 2021.

14. On 21 July 2021, the AAT1 set aside the objection decision and in substitution, decided:

    ·To revoke the existing percentage of care determinations; and

    ·Make new percentage of care determinations of 58% to the Mother and 42% to the Father with effect from 9 November 2020 (the date of the Order).

15. The AAT1 found that “there was likely to be a change in [the Father’s] level of care because of the Order” and that “it was always [the Father’s] intention to have the maximum amount of care allowed for in the Order”.

16. In making its decision, the AAT1 proceeded on the basis that the first review application had been made within time and did not consider the operation of s 95N of the Collection Act.

17. Also on 21 July 2021, the Agency made a new care percentage decision in response to the May 2021 notification and decided:

    ·To revoke the existing percentage of care determinations (29% to the Father and 71% to the Mother); and

    ·Make new percentage of care determinations of 55% to the Mother (with effect from 18 April 2021) and 45% to the father (with effect from 28 May 2021).

18. On 18 August 2021, the Mother lodged an application for second review in the General Division of the Administrative Appeals Tribunal (the Tribunal or AAT2) (2021/5854).

19. The proceedings 2021/5854 were held in abeyance while AAT1 and AAT2 determined, in response to the Respondent’s submissions, jurisdictional issues around the s 95N(2) determination. It is not necessary for present purposes to outline that jurisdictional issues in detail, except to say that AAT1 ultimately decided to hold a hearing on 29 May 2023 in respect of a determination under s 95N(2) of the Collection Act.

20. On 29 May 2023, the parents attended a hearing before AAT1 by Microsoft Teams at the conclusion of which the AAT1 made a decision on the same day not to make a determination under s 95N(2) of the Collection Act (the s 95N(2) decision). The AAT1 found the date of effect of the AAT1’s decision made on 21 July 2021 was 17 May 2021, being the date the application for first review was lodged with the AAT1.

21. The AAT1 was not satisfied there were special circumstances that prevented the father from lodging his application until 17 May 2021. The AAT1 therefore declined to extend the timeframe for lodging the application for first review pursuant to s 95N(2) of the Collection Act.

22. On 14 June 2023, the father made an application to the AAT2 under s 96AI of the Collection Act in respect of the s 95N(2) decision. That application for second review was made within time, as the time limit to make an application for second review was 28 days from receipt of the decision of AAT1. The s 95N(2) decision was received by the father on 2 June 2023 and the last day of the prescribed period would have been 30 June 2023 under the s 29(2) to (3) of the Administrative Appeals Tribunal Act 1975 (Cth).

23. It follows that there are two decisions under review in these proceedings.

24. First: A decision of the AAT1 dated 21 July 2021, in which the AAT1 set aside the decision of the Child Support Registrar (the Registrar) and in substitution, decided:

    ·To revoke the existing percentage of care determinations; and

    ·Make new percentage of care determinations of 58% to the Mother and 42% to the father with effect from 17 May 2021;[3] and

    [3] This has been given Tribunal reference number 2021/5854.

25. Second: A decision of the AAT1 dated 29 May 2023 which refused to make a determination under s 95N(2) of the Collection Act.[4]

    [4] This has been given Tribunal reference number 2023/4888.

    WHAT QUESTIONS NEED TO BE ANSWERED?

26. There are three questions that must be determined in the applications:

27. First: Should the care percentage determination in place at 7 January 2018 be revoked under s 54F of the Child Support (Assessment) Act 1989 (Cth) (Assessment Act); and

28. Second: If the existing care percentage determination should be revoked, what percentage of care should be attributed to the Father and the Mother under s 50 of the Assessment Act; and

29. Third: If applicable, the date of effect of the new determination.

    WHAT ARE THE ANSWERS TO THE QUESTIONS?

30. In my view (and I find) that:

    ·First: the care percentage determination in place at 7 January 2018 be revoked under s 54F of the Assessment Act;

    ·Second: the percentages of care for the Children should be attributed as 43% to the Father and 57% to the Mother under s 50 of the Assessment Act; and

    ·Third: the date of effect of the decision should be 17 May 2021.

    WHY ARE THEY THE ANSWERS TO THOSE QUESTIONS?

31. In exercising its jurisdiction,[5] the Tribunal will be required to determine the pattern of care of the children in relation to a period that is now wholly in the past. In doing so, the Registrar contends,[6] correctly in my view, that the Tribunal should have regard to the actual care of the children that occurred during the period.[7]

    [5] The AAT1 decision under s 43(1) of the Administrative Appeals Tribunal Act1975 that revoked the existing percentage of care determinations and made a new determination falls within the meaning of a care percentage decision and is reviewable by this Tribunal on second review under s 96A(b) of the Collection Act.

    [6] Exhibit R1, p 7, para 34.

    [7] Child Support Registrar v BKCZ [2023] FCA 1109.

32. Accordingly, in reviewing the decision under review, the Tribunal is not limited to considering the circumstances as they existed as at the date of notification, but may inform itself as it considers appropriate as to the actual care of the children in the relevant period. It is appropriate, therefore, that the Tribunal considers all evidence of care during the care period.[8] This is contrary to the point-in-time approach undertaken by the AAT1.

    [8] Exhibit R1, p 7, para 35.

33. In order to answer the foregoing questions, the Respondent contends,[9] correctly, in my view, that the Tribunal ought to address the following issues in the following sequence.

    [9] Exhibit R1, p 16-17, para 70-75.

34. First, the Tribunal should identify the change of care day and the appropriate care period.

35. Second, the Tribunal should determine whether there was a pattern of care during the care period and, if so, the actual percentages of care provided by the parents during that period. The Tribunal will need to make findings on the evidence presented by the parties as to their respective levels of care of the children during the care period.

36. Third, after the Tribunal has determined the care percentages for the care period, it will need to determine whether the care that took place was in accordance with the existing care percentage determination. If so, the Tribunal should go on to make a date of effect decision. If the Tribunal finds different percentages of care in the care period to the existing care percentage determination, it must then determine which of ss 54F or 54H is applicable in deciding whether to revoke the existing determination. If the Tribunal decides to revoke the existing determination, it must make a new care percentage determination under s 49 or s 50.

37. Fourth, if a new care determination is made, the Tribunal must then confirm the relevant date of effect. Ordinarily, if the Tribunal decided that the care changed on a date more than 28 days before the date of notification (7 December 2020), the new care determination will apply from the date of the change in care for the parent with reduced care and will apply from 7 December 2020 for the parent with increased care. However, due to the Father’s late application to the AAT1 s 95N(1) applies such that the date of effect will be 17 May 2021.

38. Fifth, the Tribunal must consider whether there were special circumstances preventing the Father from lodging the application to the AAT1 in time, and whether the date of effect of the decision should be as if the AAT1 application for review had been lodged on time (pursuant to s 95N(2)).

    The change of care day and the appropriate care period

39. On 9 November 2020, the FCWA made the Order and this appears to signal the start in the change of care.[10] The evidence before me otherwise safely establishes that the Relevant Care Period was 9 November 2020 until 17 April 2021 (as indicated above).

    [10] Transcript, p 12, lines 6-8; p 14, lines 27-30.

    The pattern of care during the care period

40. Section 50 of the Assessment Act applies where a responsible person has a pattern of care during the relevant care period and requires that the percentage determined must correspond with the actual care of the child that the Registrar is satisfied that the responsible person[11] has had, or is likely to have, during the care period.[12]

    [11] Responsible person is defined in s 5(1) of the Assessment Act as “for a child means a parent or non-parent carer of the child”.

    [12] Subsection 50(3) of the Assessment Act.

41. “Pattern of care” is not defined in the Assessment Act, however was considered by the Tribunal in Parent A and Child Support Registrar [2013] AATA 562 which said at [33]:

    The phrase ‘pattern of care’ is not given any special meaning for the purposes of the Assessment Act. Having regard to the text of ss 49 and 50 of that Act, and the content and purposes of Subdivision B of Division 4 of Part 5, the phrase can be interpreted according to its ordinary meaning. A pattern may be construed to mean a regular and intelligible form or sequence discernible in certain actions or situations, on which the prediction of successive or future events may be based. While these features may be necessary to establish a pattern of care, to my mind, in the wide variety of circumstances that may arise between parents in respect of care for children, especially where communication is afflicted by conflict and reason may be upset by emotional turmoil, room should be given for flexibility in the arrangement of care for children. In other words, the pattern looked for is not one characterised by precise conformation of detail, day by day, or by unbending regularity. Some accommodation may be expected for vicissitudes of circumstance in the care of a child, although the extent to which a pattern of care may bend or flex to accommodate variation is a matter to be determined in the facts and circumstances of each case. This interpretation is consistent with the Guide, which provides that that minor departures from the normal care of the child will not constitute a change to the pattern of care.

42. Section 54A of the Assessment Act provides a method for determining the actual care of the child. The section relevantly states:

    (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 the 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 purpose of this section, a child cannot be in the care of more than one person at the same time.

43. Subsection 54A(2) of the Assessment Act provides that the Registrar may work out the actual care a person has had based on the number of nights that a child was, or is likely to be, in the care of a person during the care period. However, the Tribunal may consider other criteria where, in the circumstances of the case, the methodology in this section is inappropriate or provides no guidance.

44. The Respondent contends, correctly in my view, that an assessment of care with reference to nights is appropriate in respect of the application before this Tribunal.[13]

    [13] Exhibit R1, p 11, para 50.

45. Both the Mother and the Father provided statements of facts, issues and contentions (SFICs) to the Tribunal. In summary:

    ·The Mother says that between 30 October 2020 and 18 April 2021, the children spent a total of 69 nights in thee Father’s care (~ 41%);[14] and

    ·The Father says that between 30 October 2020 and 18 April 2021, the children spent a total of 76 nights in his care (~45%).[15]

    [14] Exhibit M1, p 1, para 1

    [15] Exhibit F1, p 1, para 5.

46. I now turn to make findings on the evidence presented by the parties as to their respective levels of care of the children during the care period. This was not an easy task given the way in which the evidence was presented,[16] and the apparent contradictory positions adopted, particularly by the Mother.

    [16] This including making submissions on care data focused on the period 30 October 2020 and 18 April 2021, rather than Relevant Care Period.

47. Notwithstanding the Mother’s contention that the Father had ~41% actual care of the children during the quoted time period, the Mother also submitted that the actual care of the children did not change over the Relevant Care Period:

    MS ZINN:  You otherwise maintain that there was no change to the pattern of care from 9 November, such that the existing care determination – that is, 29 per cent to the father and 71 per cent to yourself – should continue to apply?

    MOTHER:  Yes[17]

    …

    MS ZINN:  Mother, as I understand it, what you’re telling the tribunal – it’s your case that the court orders didn’t add any change to the pattern of care, but rather it maintained the status quo as had existed prior to the court orders, is that right?

    MOTHER: That was my understanding at the time.[18]

    …

    MS ZINN: So, effectively from November until the proposed move in April, there was no change of the pattern of care. Is that your evidence?

    MOTHER: Well that was my understanding at the time, yes.[19]

    [17] Transcript, p 23, lines 18-21.

    [18] Transcript, p 20, lines 12-17.

    [19] Transcript, p 20, lines 25-28.

1. On the other hand, during further cross-examination, the Mother’s evidence appeared to change her position such that she said that the actual care arrangements were relatively unchanged during the Relevant Care Period:

   MEMBER: So just so I understand, your position on what… was…the actual care of the children after the court orders on 9 November, what do you have to say about that?

   MOTHER: It remained relatively unchanged up until the point that we moved.

   MEMBER: Okay. All right.

   MOTHER: So I believe the existing percentage of care should have stayed in effect until we moved [on 17 April 2021].[20]

   [20] Transcript, p 8, lines 27-36.

2. Further during cross-examination, the Mother was asked about her care calendar, which was provided to the Tribunal (showing the Father’s care of ~41%). The Mother’s evidence was that it was an accurate record of the actual care.[21] At the same time, the Mother also said she could not see any significant differences with her care calendar and the Father’s calendar (showing the Father’s care of ~45%):

   [21] Transcript, p 20, lines 35-39.

   MS ZINN: And, Mother, you’ve provided the tribunal with a calendar, which we’ve already referred to. That’s in these T documents, T1, page 10

   MOTHER: Yes.

   MS ZINN: It’s subject to what was discussed with regards to the November date.  You maintained that is an accurate record of the actual care that’s been provided by the parents?

   MOTHER: Yes. I always base mine – and every date can be substantiated with either a flight itinerary and written communication between us negotiating handover.  And I always put it on my calendar, so that I’ve got a record of that and I know when and what’s happening.

   MS ZINN: Mother, if you compare your calendar of care with the one that’s been provided by the father...[22]

   …

   MS ZINN:  … if you compare your care calendar that you’ve provided at page 10 to the calendar that’s been provided by the father at page 18 of the second set of T documents...? [23]

   …

   MS ZINN:  …  My question is – and what I want to ask – is where do you see the biggest discrepancy in the days that you’ve identified and the dates that Father has identified?[24]

   …

   MS ZINN:  Perhaps if I just give some context as to the reason for my question.

   MOTHER:  Yes.

   MS ZINN:  I’ve tried to match up the different in the dates that you’ve identified as Father having actual care of the children and the dates that Father has claimed that he had care of the children. And the period November through to April, there’s not a huge difference in relation to the dates. There are some discrepancies, but not major. So I suppose I’m just trying to identify and understand for the tribunal what the main point of different is between the parties and how that’s going to have a significant impact on the issues that the tribunal has to resolve. So really where is the – where is the issues between what you’re saying and what the father’s saying?

   MOTHER:  I mean I can’t really see any significant differences, because December and January tend to be – regardless of other things that impact and increase or decrease in time spent, that’s always fixed. So that’s not going to result in an inflated or deflated percentage of care. 

   [22] Transcript, p 20, lines 30-45.

   [23] Transcript, p 21, lines 18-20.

   [24] Transcript, p 22, lines 42-44.

3. In response to further questioning on which days/nights are in dispute over the Relevant Care Period, the Mother again contended that nothing changed in the pattern of care of the Relevant Care Period. The Mother said that the Orders were not the trigger point for a change in care but rather when she moved to Queensland:

   MEMBER:  …the…central question here…is really what actually is in dispute?  Which days and the computation of what that means to the percentage of care – that is a fundamental issue.  And I must confess I’m still uncertain as to exactly what the key difference is between the parties’ submissions on this particular point, and what the parties’ evidence is on this particular point.

   MOTHER:  My point was that it shouldn’t be calculated on a significant change when the change hadn’t actually taken place yet.  My position was always that it shouldn’t be reflecting a back-dated change in patterns of care based on an annualised projection when a number of those months we hadn’t even moved yet and that hadn’t kicked off. The trigger point was when we moved, not when we went to court.  Because we could have moved six or 12 months later. And the arrangements wouldn’t have been in November. They’re basically based around when we actually moved. I’ve never disputed there was an increase and a change. My position has always been that I’ve disputed when that change should apply from. Regardless of any other arrangements through the year, that holiday period over the beginning is always going to be the same anyway.[25]

   [25] Transcript, p 22, lines 10-46; p 23, lines 1-2.

4. The father provided evidence about the Orders and their impact on the parties’ care of the children over the Relevant Care Period. His evidence was that the actual care of the children was broadly consistent with the Orders:

   MS ZINN:  …can you, in your words, explain to the tribunal what you understood the court orders to mean in terms of the care for you to provide.

   FATHER:  I – yes, I can.  So my understanding was that the orders that Mother proposed and that I agreed to by consent was that immediately as those orders were agreed my care would increase from five days per month to 10 days per month for, you know, for the – you know, going forward.  And also that at that stage until she moved to Queensland, that the school holidays would stay the same where I had half of the school holidays – each of the four school holidays – and then when she moved to Queensland, the school holiday care would increase to – the first three school holidays being with me, and the last one being shared.

   …

   FATHER:  I can point exactly to whereabouts in the court orders – so this is on page 30 of TR2, and I will read it.  In any event, regardless of children living in Buderim, Derby or Perth, additional time during the term.  ‘The children’s time with the non-resident parent’ – which in this case was me – ‘in the event the non-resident parent is able to spend time with the children in the resident parent’s town during school term, they be at liberty to spend up to ten consecutive days with the children each month, subject to them given the resident parent no less than 14 days written notice.’  And, you know, that’s in any event regardless of Derby, Perth or whatever.  So that was a significant change that was pronounced on those orders that were, you know, agreed on 30 October and ratified – or sealed by the court – on 9 November.

   MS ZINN:  Thank you.  And you say that the care was provided by the parents in accordance with that court order from November onwards?

   FATHER:  That’s correct.[26] 

   [26] Transcript, p 25, lines 45-47; p 26, lines 1-13.

5. The Father initially contended that, between 30 October 2020 and 18 April 2021, the children spent a total of 76 nights in his care (~45%), based on a care calendar that he says is accurate.[27] However, under cross-examination, the Father offered a range of care percentages, ultimately settling on 41% to 45%:  

   [27] Transcript, p 26, lines 13-16.

   FATHER: And I think if you have a look at my … [SFIC] …between that period of 30 October and 18 April there was 170 nights and the children were in my care for 76 nights, which is about 45 per cent care.  Even if we took Mother’s 69 days, that still works out to be 41 per cent.  And I think AAT 1 determined 42 per cent at the end of their deliberations and analysis of this.  So I mean neither Mother nor myself give any dates that correspond to that 29 per cent care for that entire period.  And we now have – you know, we now have that – you know, the opportunity to look back on the actual care over that period.  And, you know, the actual care varies somewhere between 42 – well, 41 per cent care and 45 per cent care.  It’s got to be in that range, because neither Mother or myself are giving any indication or making any claims that it’s outside of that range.

   MEMBER:  So 41 to 45 per cent to you?

   FATHER:  Yes, that’s – well if you took all of my dates, it’s 45 per cent care.  And I must note that in my thing I did have 30 October.  So there will need to be a little bit of adjustment for that.  If you go for 9 November, it will be a little bit less.  And, yes, look maybe there’s one or two days where, you know, we looked at that thing of whether I handed over on the ninth or the tenth day, it’s going to be, you know – even if we take Mother’s, which is the other extreme, she – you know, she attests that there was 69 nights.  So 69 divided by – what is it, the 40 – the 170 nights works out to about 41 and a half per cent care.  But, again, that might need to be adjusted because that 170 days was – from 30 October.  So if we take 10 days off that – 69 days divided by 160 – 69 divided by 160 is 43 per cent care.

   …

   MEMBER:  Is that your contention, is it?  43 per cent?

   FATHER:  Yes.  Even if we accept Mother’s dates, that 43 per cent care between the – sorry, between the – sorry, she has 30 October as well.  So, yes, even if we take her dates it’s, you know, 41 per cent care, take my dates that’s 45 per cent care.  AAT determined 42 per cent care.  But it’s most certainly not 29 per cent.

   …

   MS ZINN:  Perhaps if I can just summarise what I understand your evidence to be, and that’s that you say that once the orders are made on 9 November 2020 there was a change to the pattern of care.  And having a look at the actual care from the period of 9 November 2020 until April 2021 when the mother and the children moved to Queensland – based on the actual care you say that the percentage of care for you should be at somewhere between 41 to 45 per cent.

   FATHER:  That’s correct. [28]

   [28] Transcript, p 26, lines 13-45; p 27, lines 1-5; p 28, lines 12-20.

6. Looking at the parties’ evidence, it is impossible for me to reconcile the Mother’s contentions and evidence that, on the one hand, nothing changed in the care arrangements over the Relevant Care Period with, on the other hand, the Mother’s evidence that the Father’s care was ~41%. The Father’s evidence, which I accept, is that there was a change in the care arrangements triggered by the Orders on 9 November 2020. Having regard to the parties’ care calendars, I also accept the Father’s evidence that the pattern of care from 9 November 2020 was consistent with the Orders.

7. There appears to be some agreement that the Father’s percentage of care over 30 October 2020 to 17 April 2021 was in the range of 41% to 45%. However, the Relevant Care Period in this matter runs over 9 November 2020 until 17 April 2021. The Tribunal is placed in a somewhat difficult position in determining the actual percentage of care in circumstances where parties’ do not provide reasonably precise submissions and evidence as to the same over the Relevant Care Period. To the extent that I can decipher the position, from the parties’ care calendars and their other evidence and submissions, I find that the Father’s actual care over the Relevant Care Period is 69 days. If this finding is correct, it results in a percentage of care of 43% to the Father and 57% to the Mother over the Relevant Care Period.           

   The existing care determination versus the actual care over the care period

8. It follows from my findings above that the actual care that took place was not in accordance with the existing care percentage determination.

9. Accordingly, I revoke the existing care percentage determinations[29] of 29% to the Father and 71% to the Mother and make a new care percentage determination[30] consistent with my findings as to the actual care of the children over the Relevant Care Period as follows:

   ·43% to the Father; and

   ·57% to the Mother.

   [29] Pursuant to s 54F of the Assessment Act.

   [30] Pursuant to s 50 of the Assessment Act.

   Date of effect for the new care determination and whether special circumstances apply

10. Having made the new care determination, I am required to confirm the relevant date of effect.

11. As noted by the Respondent, ordinarily, if the Tribunal decides that the care changed on a date more than 28 days before the date of notification, the new care determination will apply from the date of the change in care.

12. However, due to the Father’s late filing of his review application to the AAT1,[31] s 95N(1) applies such that the date of effect will be 17 May 2021, unless special circumstances apply. In this application, I must consider the question of whether there were special circumstances[32] preventing the Father from lodging the application to the AAT1 in time.

    [31] There is no dispute between the parties that the Father filed his review application to AAT1 three days late.

    [32] s 95N(2) of the Collection Act.

13. There does not appear to be any dispute about when the Registrar’s objection decision was made or when it was made available electronically to the Father: 

    MS ZINN: …I’ll just ask you a few questions now with regards to the issue of the late lodgement of the application to AAT 1.

    FATHER:  Yes.

    MS ZINN:  There’s no dispute, is there. The objection decision was made by child support on 16 April 2021?

    FATHER: Yes, that’s what the document was dated, yes, as I understand it.

    MS ZINN:  Yes.  And you agree that you were notified of that decision electronically via your myGov account on the same day?

    FATHER:  …I didn’t receive it on that day.  I don’t know what day it came through.  As I mentioned in my opening, I didn’t access the myGov between the end of March and 17 May.  And so that’s, you know, as I understood it.  I received the decision in writing on 24 April.

    MS ZINN:  Sure.  My question though wasn’t when it was accessed.  It was when it was posted online.  There is in the supplementary T documents an extract from child support records on page 7 which shows that on 16 April 2021 there was a letter posted, titled:  ‘Advise outcome of objection’.

    FATHER:  No - - -

    MS ZINN:  So on the face of that record, would you accept that even though you may not have accessed the objection decision, it was nonetheless posted online and was available for you to read on 16 April?

    …

    FATHER:  Look, I can see that the – yes, child support certainly had something on their system that they said they sent something on 16 April. [33]

    [33] Transcript, p 28, lines 21-46; p 29, lines 19-22.

14. The Father contends that he had special circumstances for not filing his review application to the AAT1 on time. The Father contends that he was not aware of the objection decision until 24 April 2021 because there were logistical issues associated with retrieving notification earlier:

    On 21 April 2021 I flew to a remote mine site in Western Australia for my employment. I had not received the objection decision by CSA as at this date. Internet coverage on site is unreliable as it is served by a single Telstra tower. Often it takes many attempts over several days to download documents.

    I received the Objection decision on 24 April 2021. I understood this to be the date of service.

    On 24 April 2021 after I had received the decision I wrote a letter to CSA (page 287 of the bundle provided by CSA and provided in Annexure C), forwarded from Lucy to Scott on 26 April 2021. In that letter I asked CSA to review their decision as I had not been given due process to provide evidence. I was attempting to have the decision reviewed by child support without needing to take the matter to the AAT.

    Notably I made CSA aware that I was rarely at home where I could receive and act on information provided by them.

    “I work 14 days on site and then visit my children for 10 days in Queensland, followed by 3 days at home I can only check my mail for once in each 28 day period. This needs to be taken into account if you require a response to anything sent to me by post.”

    CSA were, or should have been aware that at the time it was difficult for me to respond to them or to act on documents.

    I was and remain under the assumption that I had 28 days from when I received documents by CSA in which to lodge an application for first review with the AAT.

    I submitted these dates in my application to the AAT on 17 May 2021, and they were not disputed until after a decision had been made.[34]

    [34] Exhibit F1, p 2, para 11-15.

15. Despite the Father’s submissions about his logistical issues from 21 April 2021 to 24 April 2021, it appears to be the case that he was in Perth on 16 April 2021 and not working on that day.[35] There is no suggestion that anything prevented the Father from accessing the Registrar’s notification of the objection decision on that day.

    [35] Transcript, p 31, lines 5-6.

16. According to the Respondent, the Father says that he contacted Child Support on 29 April 2021 to clarify the decision and to complain about procedural issues as he thought this was the most effective way to resolve the matter. The Father alleged it took until 13 May 2021 for a Child Support officer to verbally advise him that his only recourse was to lodge an application with AAT1. He lodged the application four days later as he had to return to Perth to access his files and was not aware he could lodge the application by telephone (despite this being outlined in the cover letter to the objection decision).[36]

    [36] Exhibit R1, p 13, para 60.

17. In the Father’s SFIC filed on 21 September 2023, he maintains that he relied on information and advice of “CSA during phone calls on 29 April 2021 and 13 May 2021 where CSA were making determination on whether they could amend their decision because they did not follow their own procedures.”[37]

    [37] Exhibit R1, p 13, para 61.

18. The Respondent contends that:[38]

    ·the Registrar advised the Father as early as 29 April 2021 that he could “contact AAT” if he believed the child support decision to be wrong; and

    ·in any event, the notice of the objection decision was given to the father when it was transmitted to him electronically on 16 April 2021 by way of his Child Support Online Account (myGov Inbox). In providing his consent to receive notices electronically, the Father is deemed to have received the notice of the objection decision at the time it was capable of being retrieved.13 The Registrar contends this was on the same day that notice was given, being 16 April 2021 and any application for first review was required to be lodged on or before 14 May 2021.

    [38] Exhibit R1, p 13-14, para 62-63.

19. In my view, the Father could have accessed the Registrar’s objection decision on 16 April 2021, when it was made available to him electronically. I separately note that, having provided his consent to receive notices electronically, the Father is deemed to have received the objection decision at the time it was capable of being retrieved under the Electronic Transactions Act 1999 (Cth), ss 9(1)(d) and 14A(1)(a), and the Child Support (Assessment) Regulations 2018, reg 19(1)(a)(iii).

20. I do appreciate that the Father has made submissions about the Registrar’s system and staff, and with the contention that these matters impacted his capacity to file his objection on time. However, I am not persuaded that these matters constitute special circumstances within the context of the applicable law. Separately, the Father’s submissions address other issues, including complaints and grievances about his interactions with the Registrar. Although I am sympathetic to the Father’s concerns, I do not consider these submissions to be responsive to the question of special circumstances.  

21. On the issue of special circumstances, the Mother contends that none exist in this case:

    In the previous hearings I actually provided information that showed that there was not a significant disadvantage or justification for a late application to be accepted.  And I was actually using the other parties’ own information and documentation to support that position.[39]

    [39] Transcript, p 8, lines 15-19.

1. Overall, I am not satisfied that there were special circumstances that prevented the Father from filing his review application with the AAT1 on time.  

   DECISION

2. The decision under review is set aside and substituted with a decision that:

   (1)  The percentages of care for the Children are 43% to the Father and 57% to the Mother with effect from 17 May 2021; and

   (2)  There were no special circumstances preventing the Father from lodging his review application to the Social Services and Child Support Division of the Administrative Appeals Tribunal in time.

   I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Member Lee Benjamin.

   ...............[SGD]....................

   Associate

   Dated: 17 May 2024

   Date of Hearing:  23 January 2024

   Mother:  Self-represented

   Father:  Self-represented

   Solicitor for Respondent:               Ms Arielle Zinn

   Mills Oakley

   ANNEXURE A – EXHIBIT REGISTER

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
R1.	Respondent Statement of Facts, Issues and Contentions (pp 1-17)	R	13.11.2023
Tr1.	Section 37 T-Documents - regarding file 2021/5854 (T1-T49; pp 1-313)	-	-	23.11.2021
Tr2.	Section 37 T-Documents - regarding file 2023/4888 (T1-T10; pp 1-123)	-	-	28.08.2023
Tr3.	Supplementary Section 38AA T-Documents (S1-S6; pp 1-28)	-	-	13.11.2023
F1.	Father Statement of Facts, Issues and Contentions, and attached evidence – regarding file 2023/4888 (9 pages total)	F	-	21.09.2023
F2.	Father Statement of Facts, Issues and Contentions, and attached evidence – regarding file 2021/5854 (151 pages total)	F	-	30.05.2022
M1.	Mother Statement of Facts, Issues and Contentions, and attached evidence – regarding file 2023/4888 and 2021/5854 (19 pages total)	M	-	01.10.2023