MQMV and Child Support Registrar (Child support second review)
[2018] AATA 2924
•17 August 2018
MQMV and Child Support Registrar (Child support second review) [2018] AATA 2924 (17 August 2018)
Division:GENERAL DIVISION
File Number: 2017/7060
Re:MQMV
APPLICANT
AndChild Support Registrar
RESPONDENT
DECISION
Tribunal:Deputy President Rayment QC
Date:17 August 2018
Place:Sydney
The Tribunal has jurisdiction to review the decision of the Social Security & Child Support Division of this Tribunal dated 2 November 2017.
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Deputy President Rayment QC
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
PRACTICE AND PROCEDURE – Jurisdiction – child support – percentage of care – whether the departmental decision determined a person’s percentage of care for a child –power to determine a new percentage depends on the revocation of the existing determination – departmental decision determined the applicant’s percentage of care – the Tribunal found to have jurisdiction to review the AAT1 decision
LEGISLATION
Administrative Appeals Tribunal Act 1975, s 43
Child Support (Assessment) Act 1989, ss 49, 50, 54F
Child Support (Registration and Collection) Act 1988, ss 4, 96A
CASES
LXTK and Child Support Registrar [2016]
QLKM and Child Support Registrar [2018]
ZJSZ and Child Support Registrar [2017] AATA 1565
REASONS FOR DECISION
Deputy President Rayment QC
17 August 2018
The applicant in this case is the father of a child in care.
The respondent submits that the General Division of this Tribunal has no jurisdiction to entertain the application for review made by the father of the child following a determination by the Social Security & Child Support Division of this Tribunal made on 2 November 2017 (AAT1).
The question before me has been considered before in the General Division of this Tribunal and two decisions have reached a conclusion that would be favourable to the respondent and one would favour the applicant. Normally, a prior decision of this Tribunal after full argument and not attended by any error of law would be treated as normative in later decisions of the Tribunal. It seems that none of the members of the Tribunal who decided those cases was informed of the prior decisions. The three prior decisions are LXTK and Child Support Registrar [2016], ZJSZ and Child Support Registrar [2017] AATA 1565 and QLKM and Child Support Registrar [2018], a decision of Deputy President Dr P McDermott RFD made on 1 February 2018. Some of those decisions do not have AATA references.
The jurisdiction of the General Division to entertain the application for a second review of AAT1 is confined by s 96A(b) of the Child Support (Registration and Collection) Act 1988.
Section 96A is in the following terms:
96A Application for AAT second review
An application may be made to the AAT for review (AAT second review) of the following decisions of the AAT:
(a)a decision under section 92 to refuse an extension application;
(b)a decision under subsection 43(1) of the AAT Act on AAT first review of a care percentage decision;
(c)a decision under subsection 95N(2) to make, or not to make, a determination.
It follows from the terms of s 96A(b) that a second review is only possible if the decision given by AAT 1 was on first review of a care percentage decision. The expression “care percentage decision” is defined by s 4 of the Act (unless the contrary intention appears) as follows:
care percentage decision means a decision as to the particulars of an administrative assessment, or as to the particulars of a notional assessment, to the extent that the decision involves (wholly or partly):
(a)a determination of a person’s percentage of care for a child that was made under a provision of Subdivision B of Division 4 of Part 5 of the Assessment Act; or
(b)a determination relating to a person that has effect, under section 54K of that Act, as if it were a determination made under such a provision.
The Assessment Act in that definition means the Child Support (Assessment) Act1989.
The words “to the extent that the decision involves (wholly or partly)” direct attention to the decision which AAT1 was asked to review, that is, the decision of an authorised review officer or similar officer delegated by the Registrar to make the reviewable decision.
Both LXTK and ZJSZ were cases in which the reviewable decision considered by AAT 1 was a decision not to change the existing care percentage decision. The two decisions reached opposite results. In considering what I regard as the correct result in this matter, I have preferred to examine the questions for myself, rather than to comment upon the reasoning in the two earlier decisions.
QLKM was concerned with the Child Registrar’s decision to review a percentage care determination and in consequence to revoke and replace a care determination. DP McDermott held that the effect of s 96A of the Act was that this Division of the Tribunal (AAT2) had jurisdiction to review the percentage care determination but not the revocation decision. Of course, as to the revocation decision, there was power in AAT2 to remit the matter for reconsideration in the light of the review of the percentage care determination. I treat the decision in QLKM as normative and with respect, I regard it as correct.
It seems to me that to resolve the present objection to the jurisdiction of AAT2, it is necessary to decide whether the departmental decision involved wholly or partly a determination of a person’s percentage of care for a child that was made under a provision of Subdivision B of Division 4 of Part 5 of the Assessment Act. Then one should ask what parts, if any, of the decision satisfy the expression commencing with the words “to the extent that”. If s 96A(b) is satisfied, then whatever may have been the course adopted by AAT1 under s 43(1) of the Administrative Appeals Tribunal Act 1975, there will be jurisdiction in the General Division to entertain an application for a second review. So long as a part of the decision made by the departmental officer involved a determination of a person’s percentage of care for a child that was made under a provision of Subdivision B of Division 4 of Part 5 of the Assessment Act, there will be jurisdiction to entertain a second review, at least to that extent.
An original departmental decision of 2 May 2017 was notified to the child’s mother in a letter of 2 May 2017. Relevantly, the letter said that the Child Support Agency recently received new information about the care arrangements for the child. The letter continued: “We have decided that the new information does not require a change in your child support assessment at this time”, and added: “You are still entitled to receive child support at the current rate”.
The papers before me also include the notes made by the Agency. Based mainly or solely upon information provided by the child’s mother, the Agency decided that no new care determination was to be made. The decision was described as one “to reject the carer’s request for a new determination of care percentage”.
The present applicant objected to the original decision and the matter proceeded to one or more other departmental officers.
The departmental officer’s decision of 7 July 2017 was issued under the name of the General Manager, Child Support Smart Centres. That decision was to disallow the objection. It was accompanied by a document giving details of the decision on the objection.
The document stated:
“We has (sic) reviewed the evidence on the case and that provided by both parents during the objection process and the original decision. As we have not been able to make a clear determination about the pattern of care, the decision made by Child Support on 2 May 2017 to refuse to record that [the father} has 100% care of [the child] from 29 March 2017, is affirmed.”
The first question is whether at least part of the departmental decision involved a determination made under a provision of Subdivision B of Division 4 of Part 5 of the Assessment Act.
Parts B and C of Division 4 of part 5 of the Assessment Act are described as follows in the Table of Provisions of the Assessment Act:
Subdivision B – Determination of percentage of care
49Determination of percentage of care--responsible person has had etc. no pattern of care for a child
50Determination of percentage of care--responsible person has had etc. a pattern of care for a child
51Percentage of care if action taken to ensure that a care arrangement in relation to a child is complied with
53Section 51 does not apply in certain circumstances
53AMeaning of interim period
53BWhen a person has increased care of a child
54When a person has reduced care of a child
54AWorking out actual care, and extent of care, of a child
54BDays to which the percentage of care applies if section 51 did not apply etc. in relation to a responsible person
54CDays to which the percentage of care applies if 2 percentages of care apply under section 51 in relation to a responsible person
54DRounding of a percentage of care
54ERegistrar must have regard to guidelines about the making of determinations
Subdivision C – Revocation and suspension of determination of percentage of care
54FDetermination must be revoked if there is a change to the responsible person's cost percentage
54FASuspension of determination before the end of the maximum interim period if there is a change to the responsible person's cost percentage
54GDetermination must be revoked if there is less than regular care etc.
54HRegistrar may revoke a determination of a responsible person's percentage of care
54HASuspension of determination of a responsible person's percentage of care before the end of the maximum interim period
54JRegistrar must have regard to guidelines about the revocation of determinations.
A consideration of the provisions of Subdivisions B and C show that the provisions of each subdivision are closely interrelated. For example, section 54F (part of Subdivision C) provides:
54F Determination must be revoked if there is a change to the responsible person’s cost percentage
(1)The Registrar must revoke a determination of a responsible person’s percentage of care (the existing percentage of care) for a child made under section 49 or 50 if:
(a)the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person’s existing percentage of care for the child; and
(b)the Registrar is satisfied that the responsible person’s cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person’s percentage of care for the child; and
(c)section 54G does not apply; and
(d)subsection (2) applies in relation to the individual.
Note:The Registrar must make another determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).
(2)This subsection applies in relation to a responsible person if:
(a)disregarding paragraph 53(1)(c), section 51 did not apply in relation to the responsible person; or
(b)section 51 did apply in relation to the responsible person but the maximum interim period for the determination has ended; or
(c)all of the following apply:
(i) section 51 did apply in relation to the responsible person;
(ii) the maximum interim period for an earlier determination of the responsible person’s percentage of care for the child has not ended;
(iii) an interim period does not currently apply in relation to the earlier determination;
(iv) the determination referred to in subsection (1) was made while the earlier determination was suspended under this Subdivision.
Note:For when section 51 does not apply, see section 53.
(3)The revocation of the determination takes effect at the end of:
(a)if the Registrar or Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(a) within 28 days after the change of care day for the responsible person—the day before the change of care day; or
(b)if the Registrar or Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person and:
(i) the responsible person’s care of the child has increased—the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter; or
(ii) the responsible person’s care of the child has reduced—the day before the change of care day.
Sections 49 and 50 (each part of Subdivision B) provide as follows:
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.
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.
The occasion which led to AAT1 was the determination of the General Manager, Child Support Smart Centres to affirm the original decision following an objection to the original decision.
On behalf of the respondent, it has been submitted that the determination at the departmental level was made under Subdivision C rather than Subdivision B. The expression “percentage of care” is used in both Subdivisions. It is defined as “the responsible person's percentage of care for the child that is determined by the Registrar under Subdivision B of Division 4 of Part 5”.
There are a number of statutory qualifications put on the various provisions of Subdivisions B and C. Speaking generally, they provide that if the Registrar finds that care is currently being provided otherwise than as set forth in an existing determination of percentage of care, then he should determine a new percentage of care. Here, the Registrar refused to do so. If the Registrar had been of a different opinion, a new determination under s 49(2) would have been made and the Registrar would have revoked the old determination and substituted a new one, pursuant to s 54F. The Registrar was not satisfied that there was a change in the previously determined percentage of care, and therefore it was not altered.
That does involve a refusal to act under s 50 in my opinion. There was no occasion to change the existing percentage of care, and no duty to act under s 54F.
It was submitted to me on behalf of the respondent that:
(a)there cannot be at any one time, more than one percentage determination in force, as logic and the Assessment Act dictates;
(b)the power to determine a new percentage is dependent on the existing determination having been revoked.
In my opinion, step (a) is correct.
As to step (b): A person who wants to have the percentage of care changed will apply to the Registrar, presumably with evidence which would suggest a change has occurred. If the Registrar is minded to make an order in favour of the person applying, part of what has to be established to the satisfaction of the Registrar is that the earlier determination under s 49 or s 50 is revoked or suspended: see s 49(1)(b)(i) and s 50(1)(b)(i). That makes it a necessary precondition of the power to make an order changing the percentage of care that the order of revocation or suspension (which can only be made under Subdivision C) is made. The Registrar is therefore directed not to change a percentage of care determination while an earlier, inconsistent care determination is in force.
If the Registrar were a court minded to make an order changing the percentage, order 1 made would be an order of revocation. The second order would be a new determination.
In my example, orders 1 and 2 would operate simultaneously. However, order 2 could not be made unless order 1 was also made.
To continue the example, if the Registrar was not satisfied that order 2 should be made, then if the Registrar were a court, he would simply order that the proceeding be dismissed. That is the analogous situation with which we are concerned here.
If the Registrar was unsatisfied that the percentage should be changed, under what statutory power is the Registrar acting?
In my opinion, it is the power conferred by s 49 or s 50. Unless the Registrar is satisfied of the primary fact that the percentage of care has changed, then he or she has no statutory authority to act under s 49 or s 50, in which case, no question of the Registrar acting under Subdivision C will arise. The Registrar would be entertaining an application under s 49 or s 50, and it would be dismissed because of the absence of satisfaction of the primary facts, not because of the absence of a revocation.
Returning to the submissions noted in [25] above, step (b) may be said to be true for reasons expressed in [27], but the argument in [25] does not lead to its tacit intended conclusion because of the considerations mentioned in [28]–[32]. Those considerations suggest to me that the departmental decisions were each (wholly) decisions involving a determination of a person’s percentage of care that was made under a provision of Subdivision B of Division 4 of Part 5 of the Assessment Act.
Therefore, the Respondent’s objection to jurisdiction will be overruled.
I certify that the preceding 34 (thirty -four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Rayment QC
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Associate
Dated: 17 August 2018
Date(s) of hearing: 2 August 2018 Applicant: By Telephone Solicitors for the Respondent: Mr K Eskerie, Sparke Helmore Lawyers
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