Serth and Wardell (Child support) - [2019] AATA 2533

Serth and Wardell (Child support) [2019] AATA 2533 (15 March 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2018/PC015382
APPLICANT:  Mrs Serth
OTHER PARTIES:  Child Support Registrar
Mr Wardell

TRIBUNAL:Deputy President J Walsh
DECISION DATE: 15 March 2019
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that, since paragraph 87AA(1)(b) of the Child Support (Registration and Collection) Act 1988 is not satisfied, the date of effect of the care percentage decision of 100% in Mrs Serth’s favour is 6 April 2016.

CATCHWORDS

CHILD SUPPORT – objection to percentage of care decision rejected – whether Tribunal has jurisdiction to review the decision - percentage of care – whether actual care differed from that being recorded for child support purposes – date of effect - whether notified of a care percentage 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 applicant mother seeks review in respect of an objection decision dated 20 October 2018 which had two components:
· a decision to allow her objection to an original decision dated 9 June 2016, which had refused to change pre-existing care percentages of 84% to the mother and 16% to the father, by determining her care percentage was 100% from 6 April 2016; and
· a decision that this care percentage should have effect in the child support assessment from 21 August 2018; this flowed from a determination not to decide under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 that there were special circumstances which prevented the mother from objecting within 28 days of service of notice of the original decision.
This latter decision was based on the objections officer’s view that the mother had not objected to the original care percentage decision dated 9 June 2016 until 21 August 2018 and a finding that there were no relevant special circumstances. The mother seeks review in respect of this latter date of effect decision only. She does not seek to challenge the decision of 100% care in her favour.
From December 2012, the Child Support Registrar (by delegates in the CSA) had recorded care percentages in respect of the parents’ daughter of 84% to the mother and 16% to the father. In April 2016, the CSA considered that the father had notified of having increased care. In response, the mother claimed she had 100% care since 21 March 2016. Ultimately, the CSA decided not to change the recorded care percentages.
Subsequently, the mother continued to notify the CSA that she had 100% care. In particular, she did so in October 2016, February 2017 and March 2018. On each occasion, the CSA failed or refused to make new care percentage…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] AATA 2533
Decision Date: 15 March 2019

CaseChat Overview and Summary

This matter concerned an objection by the mother to a decision regarding the percentage of care for a child. The Registrar initially submitted that the Administrative Appeals Tribunal (AAT) lacked jurisdiction to hear the mother's application because the original decision was not a "care percentage decision" as defined, and a valid objection had not been made within the prescribed 28-day period. The Registrar later conceded that the Tribunal had jurisdiction but argued that the mother's objection was invalid due to not being in writing and being lodged late, necessitating the setting aside of the objection decision and remittal for reconsideration.

The primary legal issue before the Tribunal was whether it had jurisdiction to review the Registrar's decision, particularly given that the mother's objection was lodged more than 28 days after notification of the original decision and was not in writing. The Tribunal was required to determine if the objection decision itself, irrespective of its legal validity, provided the necessary jurisdictional foundation for review.

Deputy J Walsh P reasoned that the Tribunal's jurisdiction was established by the existence of the objection decision, not by its legal efficacy. The Tribunal's power to review an objection decision is triggered by the decision itself, even if that decision is later found to be flawed or based on an invalid objection. The Registrar's argument that the original decision was not a "care percentage decision" was not determinative of the Tribunal's jurisdiction to review the subsequent objection decision.

The Tribunal found that it did have jurisdiction in the matter. The decision under review was set aside and substituted, indicating that the Tribunal proceeded to consider the merits of the care percentage issue.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Having found in the mother’s favour on the care percentage issue, the objections officer then had to determine what flowed from her objection having been made more than 28 days after notice of the original decision. This required a consideration of section 87AA of the Collection Act which provides: 87AA Date of effect of objections relating to care percentage decisions that are allowed (1) If:(a) a person lodges, under section 80A, an objection to a care percentage decision; and(b) the objection is lodged more than 28 days or, if the person is a resident of a reciprocating jurisdiction, 90 days after notice of the care percentage decision was served; and(c) the Registrar decides (the review decision), under section 87, to allow the objection in a way that has the effect of varying the determination to which the care percentage decision relates, or substituting a new determination;the date of effect of the review decision is the day on which the person lodged the objection.(2) If the Registrar is satisfied that there are special circumstances that prevented the person from lodging the objection within the period referred to in paragraph (1)(b), the Registrar may determine that subsection (1) applies as if:(a) in a case where the person is a resident of a reciprocating jurisdiction—the reference to 90 days in that paragraph were a reference to such longer period as the Registrar determines to be appropriate; or(b) otherwise—the reference to 28 days in that paragraph were a reference to such longer period as the Registrar determines to be appropriate. (3) If:(a) the Registrar decides to make a determination under subsection (2) in relation to a person; or(b) the Registrar decides not to make such a determination in relation to a person;the Registrar must give written notice of the decision to each person affected by the decision. The Registrar’s original submission was that the Tribunal had no jurisdiction to hear and decide the mother’s AAT application. In simple terms, the basis was that the original decision, not to change the pre-existing care percentages, was not a care percentage decision as defined and that a valid objection had to be made in writing within 28 days of notification of the original decision. Since the mother’s objection was not in writing and was late in any event, the resulting objection decision was invalidly made so that the Tribunal could not review it. The Registrar’s later submission accepted that the Tribunal did have jurisdiction, but that since the mother’s objection was not validly made (not being in writing and being late), the Tribunal should set aside the objection decision and remit the matter for reconsideration on the basis that the mother’s objection was not valid. The essential basis for the Registrar’s submissions is that the original decision was not a care percentage decision as defined. In my view, there is no doubt about the Tribunal’s jurisdiction in this case. It is the fact of the objection decision, and not its legal efficacy, which provides the necessary jurisdictional foundation.

Ratio Decidendi

Legal Principle Established

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