Rogerson and Child Support Registrar (Child support)

Rogerson and Child Support Registrar (Child support) [2020] AATA 4924 (15 September 2020)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER: 2020/SC019442
APPLICANT: Mr Rogerson

OTHER PARTIES: Child Support Registrar
TRIBUNAL:Member M Douglas
DECISION DATE: 15 September 2020
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that:

(a)Pursuant to subsection 50(2) of the Child Support (Assessment) Act 1989, Mr Rogerson’s percentage of care for both children is 37% and Ms Rogerson’s percentage of care for both children is 63%.
(b)The Tribunal otherwise orders pursuant to subsection 43(6) of the Administrative Appeals Tribunal Act 1975 that the date of effect of the Tribunal’s decision at (a) above is 7 April 2020.

For the sake of clarity, the Tribunal notes that the above decision does not affect the care percentage decisions that Services Australia has made regarding changes in the pattern of care of the children that were notified as having occurred after the care percentage decision of 21 October 2019.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made – date of effect of the Tribunal’s decision - decision under review set aside and substituted

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.

REASONS FOR DECISION

BACKGROUND

The Tribunal is reviewing an objection decision a delegate of the Child Support Registrar made on 3 July 2020 relating to the care percentages for Mr Rogerson and Ms Rogerson’s children, [named]. The objection decision resulted in Mr Rogerson and Ms Rogerson’s care percentages for their children being varied, respectively, to 28% and 72% from 30% and 70% that were determined pursuant to the primary decision made on 21 October 2019. The care percentages that were determined by the objection decision took effect only from 7 April 2020, which is when Mr Rogerson lodged his objection. This is because the delegate was not satisfied that there were special circumstances that prevented Mr Rogerson from lodging his objection within 28 days of his being served with notice of the primary decision.
The Registrar acts through staff employed by a government department known as Services Australia (previously called the Department of Human Services). A reference to Services Australia in this decision is to be read as a reference to the Registrar.
The Tribunal observes that in accordance with subsection 30(1) of the Administrative Appeals Tribunal Act1975 (the AAT Act), the parties to proceedings in the Tribunal include the party who is entitled to apply for review of a decision and has duly applied for review, which in this case is Mr Rogerson, and the person who made the decision, which in this case is Services Australia.
The Tribunal also observes that subsection 30(1) of the AAT Act also allows a person to be a party to proceedings if that person’s interests would be affected by the decision of the Tribunal and that person has applied under subsection 30(1A) to be a party and the Tribunal has accepted that application.
In this case, the Tribunal posted Ms Rogerson an invitation to apply to be a party to the proceedings. Ms Rogerson declined that invitation and she accordingly is not a party to these proceedings and has not been heard by the Tribunal with respect to the Tribunal’s review of the objection decision.
The Tribunal also notes, for the sake of completeness, that subsequent to Services Australia making its primary decision on 21 October 2019 both Ms Rogerson and Mr Rogerson notified Services Australia of changes to the care of their children that occurred subsequent to that date. Services Australia in response to one such notification made a decision on 18 July 2020 that the care percentages for the children were 50% for Mr Rogerson and 50% for Ms Rogerson from 1 March 2020. It seems too that there is a decision pending with respect to a further subsequent notification. The Tribunal is not reviewing those matters and the Tribunal’s decision in this matter has no bearing on the decision of 18 July 2020 or the pending decision.

ISSUE

On 14 October 2019 Ms Rogerson applied to Services Australia for an administrative assessment of child support to be made for the children. In accordance with subparagraph 50(1)(a)(i) of the Child Support (Assessment) Act 1989 (the Act) her making such an application required Services Australia, pursuant to subsection 50(2), to determine the care percentages of Mr Rogerson and Ms Rogerson for their children for a care period. Pursuant to subsection 50(3) the care percentages Services Australia were to determine had to correspond with the actual care that Mr Rogerson and Ms Rogerson were likely to have of their children during the care period.
The objection decision that the Tribunal is reviewing relates to Services Australia’s determination of those care percentages. Accordingly, the issue the Tribunal must consider is what was likely to be the actual care that Ms Rogerson and Mr Rogerson would have of their children during the relevant care period.

CONSIDERATION

The point of time at which the Tribunal considers the decision it is reviewing is the date at which Services Australia made its original decision, which as mentioned is 21 October 2019. In other words, the task of the Tribunal is to consider, based on what was known at that time, what the likely pattern of care would be for the children for the care period. The care period is a period of time that Services Australia, and the Tribunal in its place, chooses as being appropriate to discern a pattern of care of the children. Generally speaking that will be for a period of twelve months.
Mr Rogerson gave affirmed oral evidence to the Tribunal at the hearing of his application for review on 15 September 2020, that he and Ms Rogerson separated and remained under the one roof in September 2019. The house in which they lived was a four-bedroom house that had been set up with two different living arrangements. He would reside in one section and Ms Rogerson would reside in the other section. His evidence was that both at that time and afterwards, the children attended childcare three days a week. That enabled Ms Rogerson to go to university. He said that during the week Ms Rogerson would generally have the children on those nights in which they were in childcare and he would have them on those nights in which they were not in childcare. On those days during the week when they were not in childcare, Ms Rogerson took care of them. In other words, Mr Rogerson, who is in full-time employment, would collect the children from Ms Rogerson at the end of his working day on those two days during the week that the children were not in childcare.
Mr Rogerson also gave oral evidence that he worked one weekend out of every three. He said that over a three-week period, he would have the children on one weekend and Ms Rogerson would have them on another weekend and on the third weekend they would split the care of the children between them.
Mr Rogerson’s evidence was that although there was some variation with that arrangement to suit particular circumstances of a day or week, generally that is what occurred.
Mr Rogerson’s evidence was also that Ms Rogerson started looking for other accommodation around early October 2019, and she eventually moved to her own residence on 2 November 2019. In other words, they were separated under the one roof, but since then they have lived apart.
Mr Rogerson’s evidence was that around the time Ms Rogerson started looking for separate accommodation she and he discussed what would happen with their arrangements regarding their care of their children and they agreed to just carry on with what they had been doing.
The Tribunal accepts Mr Rogerson’s evidence.
The Tribunal notes that within the papers Services Australia provided to the Tribunal in accordance with its obligation under subsection 37(1) of the AAT Act, there is a note an employee of Services Australia made that Mr Rogerson, when initially contacted by Services Australia on 21 October 2019 regarding Ms Rogerson’s application for the children to be assessed for child support, said that the care of the children was “70-30%” from 14 October 2019. At the hearing Mr Rogerson explained that when he was contacted by Services Australia on 21 October 2019, he was uncertain as to how the care of the children was to be calculated and, based upon what he understood the employee of Services Australia had explained to him at the time, he thought his care was 30%. However, upon further consideration after the call, he came to the view that was not correct.
In terms of the care period by which it would be appropriate to discern a pattern of care for the children, the Tribunal considers that that would be twelve months from September 2019. This is because that is when Mr Rogerson and Ms Rogerson separated and because the children would be in childcare for at least another year from then. Further, Mr Rogerson gave evidence to the effect that he and Ms Rogerson had decided in early October that after Ms Rogerson moved into her own residence their arrangement with respect to the care of the children would continue.
Subsection 54A(1) of the Act allows the actual care of the child to be determined by reference to the number of nights that the child will be in a parent’s care during a care period. That however is not mandatory. The Child Support Guide recognises there may be some occasions where only counting the nights will not accurately reflect the care arrangements for a child. The Guide provides as an example a circumstance where one parent provides care each night but the other parent provides care during the day. In such a circumstance, the Guide contemplates that care may be more accurately computed by reference to the hours of care the child is in each parent’s care.
Given Mr Rogerson’s evidence that at the relevant time there were, during each week, two days when [the children] were cared for by Ms Rogerson during the day and by him during the night, it seems to the Tribunal that it would be more appropriate in this case that the care of the children be calculated by reference to the number of hours in which the children were in each parent’s care rather than the number of nights. It seems to the Tribunal that would more accurately reflect the care that Mr Rogerson and Ms Rogerson each had of their children.
The Tribunal assumes that the children went into childcare around 9am each morning and were collected from childcare around 5pm each day, and that on those days during the week they were not in childcare that Mr Rogerson would either deliver the children to or collect the children from Ms Rogerson at approximately those times. Based on that assumption, and treating the hours when they were in childcare as being in Ms Rogerson’s care (as she took them to and collected them from child care), and having accepted Mr Rogerson’s evidence with respect to the arrangement between him and Ms Rogerson regarding how they cared for their children both during the week and on weekends, the Tribunal calculates that the children would have been in Ms Rogerson’s care for 315 hours and Mr Rogerson’s care for 189 hours over a three-week period, which corresponds with percentages of 63% for Ms Rogerson and 37% for Mr Rogerson.
The care percentages that ought to have been determined therefore under subsection 50(2) are 37% for Mr Rogerson and 63% for Ms Rogerson, and not the percentages Services Australia determined by its objection decision of 3 July 2020.
Accordingly, the decision of Services Australia must be set aside and care percentages determined in those figures.
There is another matter that the Tribunal must consider and that is the date on which the Tribunal’s decision is to take effect. This is because Mr Rogerson did not lodge his objection to Services Australia’s primary decision until 7 April 2020, which was far more than 28 days after he was served with notice of the primary decision.
Subsections 87AA(1) and (2) of the Child Support (Registration and Collection) Act 1988 (the R&C Act) together have the effect, in substance, that if a person objects to a care percentage decision more than 28 days after being served with notice of it, then any decision of Services Australia on the objection that varies or substitutes the primary care percentage decision will only apply from the date the objection was made, unless there were special circumstances that prevented the person from lodging the objection within 28 days. If there were special circumstances, then Services Australia has a discretion that, in effect, allows for the varied or substituted decision to apply from the date it otherwise would under the relevant provision of Subdivision C of Division 4 of Part 5 of the Act.
Mr Rogerson’s evidence to the Tribunal was that he did not lodge his objection within 28 days of receiving the primary decision because he was “unfamiliar with the whole situation” and “never really looked into it”. Further, he said that he and Ms Rogerson had a private agreement at the time relating to how he would pay her child support and there was no need for him at that time to object to the primary decision. None of those matters, in the Tribunal’s view, amounts to a special circumstance and moreover, none of those matters prevented Mr Rogerson from lodging an objection within 28 days of receiving the primary decision. That too was the finding of Services Australia.
As set out above, the Tribunal considers that the correct decision that Services Australia should have made with respect to the care percentages was 37% for Mr Rogerson and 63% for Ms Rogerson. Services Australia’s objection decision was therefore wrong. The Tribunal must therefore set aside the objection decision and substitute its decision.
It seems to the Tribunal that Mr Rogerson ought not to be in a better position by virtue of the Tribunal now making its decision than the position in which he would have been had Services Australia made the correct decision on his objection. Any other result would defeat the purpose of subsection 87AA(2) of the R&C Act. The Tribunal therefore “otherwise orders” pursuant to subsection 43(6) of the AAT Act that the date of effect of the Tribunal’s decision with respect to care percentages for the children takes effect on 7 April 2020.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that:

(a)Pursuant to subsection 50(2) of the Child Support (Assessment) Act 1989, Mr Rogerson’s percentage of care for both children is 37% and Ms Rogerson’s percentage of care for both children is 63%.
(b)The Tribunal otherwise orders pursuant to subsection 43(6) of the Administrative Appeals Tribunal Act 1975 that the date of effect of the Tribunal’s decision at (a) above is 7 April 2020.

[2020] AATA 4924

15 September 2020

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Judicial Review

Statutory Construction