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 decisions. Eventually, on 21 August 2018, when she yet again notified of having 100% care, she was recorded as having objected to the original decision made in June 2016.
I conducted a hearing on 5 February 2019, having directed that the Registrar appear and make submissions on particular aspects. The father, who had been made a party, could not be contacted and the hearing proceeded in his absence. At the conclusion of the hearing, I directed that the Registrar make further written submissions on a number of specified matters.

CONSIDERATION

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.
There was no time limit for the mother to object, if the original decision was a care percentage decision: see subsection 81(1) of the Collection Act. The term “care percentage decision” is defined in subsection 4(1) of the Collection Act:
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 Registrar’s submissions assume that only new care determinations under sections 49 or 50 of the Child Support (Assessment) Act 1989 are care percentage decisions within this definition. This is contrary to the decision of Deputy President Rayment in MQMV and Child Support Registrar (Child support second review) [2018] AATA 2924. The Registrar has appealed MQMV to the Federal Court and submits I should reserve my decision until that matter has been decided. The Tribunal’s statutory objective includes timely finalisation of reviews. Given my view, it is not appropriate to delay finalisation of this review on the basis the Registrar suggests. I note, in any event, that my AAT appointment expires on 24 March 2019.
In considering the original decision here in June 2016, the CSA had to consider whether actual care at that stage differed from the care percentages then recorded. It had to do so by assessing the actual or likely pattern of care for an appropriate care period. But the starting point for its consideration whether or not to change recorded care (formally, to revoke the existing care percentages and then determine new care percentages) was to assess actual care against care then recorded. Inevitably, this meant taking account, by using it as the starting point for comparison purposes, the then existing care percentages. In my view, this process “involves” those pre-existing care percentages, which were determined under section 50 of the Assessment Act (which is within Subdivision B of Division 4 of Part 5). It follows I do not accept the narrow construction which underpins the Registrar’s submissions. In this respect, I note the Registrar’s submissions would give rise to significantly differing review rights, depending on the view taken by the original decision-maker. I see no warrant for that approach.
Accordingly, I consider the original decision in June 2016 not to revoke the then existing care percentages was a care percentage decision. I reject the Registrar’s submissions to the contrary.
The objections officer considered the mother’s objection in August 2018 was more than 28 days after notice of the original decision was served on her. In this context, I accept the Registrar’s submission that, fairly construed, the mother’s contacts with the CSA in October 2016, February 2017 and March 2018 were not objections to the original June 2016 decision. It may be noted that I also agree with the Registrar’s submissions to the effect that, in the circumstances, these notifications leave open undetermined care decisions for the CSA to make.
It seems appropriate to make some comment about this unsatisfactory state of affairs. The CSA’s repeated failure to make decisions in response to the mother’s notifications from October 2016 to March 2018 is referable to a significant and systemic misunderstanding which the Tribunal sees all too often. The CSA has a misconceived focus on care change events, whereas the real question it must consider when notified is whether actual care differs from that being recorded for child support purposes. This question should have been considered in each of October 2016, February 2017 and March 2018. The focus on care events seems to relate to the CSA misapprehending that it is making decisions for both child support and Family Tax Benefit purposes. However, the fundamental purpose of a child support care percentage decision is to inform the rate of child support liability. It is simply not correct for the CSA to consider it is also somehow making FTB care percentage decisions at the same time.
Given her objection was made in August 2018, whether the time limit detailed in paragraph 87AA(1)(b) of the Collection Act has application here turns on whether, and when, the mother was served with notice of the original decision. Was she properly served with notice of the original decision? The inclusion of the concept of “service” in this context shows that written notice was required. The question then arises as to whether the CSA’s notice of 9 June 2016 was sufficient notice. The relevant content of this notice was:
A CHANGE IN YOUR CARE ARRANGEMENTS
We are writing to advise you that the Child Support Agency (CSA) recently received new information about in the care arrangements for [Child 1].
What this means for you
We have decided that the new information does not require a change in your child support assessment at this time.
·You are still entitled to receive child support at the current rate…
The notice then contained standard text which included reference to objection rights. There were no assessment notices accompanying the notice of 9 June 2016.
What constitutes sufficient notice of a decision in the child support context has been given very little, if any, attention in decided cases. In my view, written notice of a decision in this context must inform that a decision had been made and it must convey the content of that decision. However, reasons for the decision are not required to be given: see generally Secretary, Department of Family & Community Services v Rogers [2000] FCA 1447 per Cooper J. At [31] – [33], his Honour said:
31       A notice is a notification, a making known, a communication of some matter from one person to another. In the statutory context, the statute identifies the matter to be notified by the notice. Notice is given when it is received by the person to whom the notice is to be given: the giving and receiving of the notice are two aspects of the same action and are simultaneous. Consequently, the giving of notice ordinarily will require that the person to be given notice actually receives notification of the matter to be communicated. Of course, whether by statute or contract, this two-sided act of giving and receiving of notice may be deemed to be done by some act other than actual receipt of the notification by the recipient: Sun Alliance and London Assurance Co Ltd v Hayman [1975] 1 WLR 177 (CA) at 183, 184, 185.
32         A requirement that a person be given notice of something does not demand that the matter be brought home to the person’s understanding or knowledge; nor is notice synonymous with knowledge: Nguyen v Refugee Review Tribunal (1997) 74 FCR 311 (FC) at 320, 325, 332 citing with approval Goodyear Tyre and Rubber Co (GB) Ltd v Lancashire Batteries Ltd [1958] 1 WLR 857 at 863 and Cresta Holdings Ltd v Karlin [1959] 1 WLR 1055 at 1057-1058. However, notice requires that the matter of which a person is to have notice must be brought clearly to the person’s attention: Goodyear Tyre and Rubber Co at 863; Austin at 146 - 147.
33          In my view, the matter to be communicated by the “notice” referred to in subsections 299(2), (3) and (4) is the making of a decision in relation to a sole parent pension which is a reviewable decision under s 1240 of the Act. That involves two elements; the fact that a decision has been made and the content of the decision…
Here, the original decision was not to change the pre-existing care percentages. The heading “A CHANGE IN YOUR CARE ARRANGEMENTS” did not convey that a decision not to change recorded care percentages was made. Indeed, the only reference to anything having been decided emerges from the words “We have decided that the new information does not require a change in your child support assessment at this time.” The average reader, likely to receive such correspondence, would not, in my view, necessarily equate a child support assessment with a care percentage decision. Ordinarily, a reference to a child support assessment would be understood as a reference to the ultimate child support liability. And, of course, it is possible for the CSA to determine new care percentages which would not operate to change the ultimate child support liability in any event (for example, if the father’s care was changed from 16% to any different figure between 14% and 34% or if a departure decision setting the annual rate had been made). In my view, it follows that the CSA notice of 9 June 2016 did not give notice of the original decision not to change the pre-existing care percentages.
The result is that, since paragraph 87AA(1)(b) of the Collection Act is not satisfied, there is no limitation applying to the date of effect of the care percentage decision made on objection. The objections officer found that the mother had 100% care from 6 April 2016. Since the substance of the care percentage decision on objection is not before me on this application, and given it was open to the original decision-maker to determine care changed from this date, 6 April 2016 is the appropriate date of effect in the circumstances.

DECISION