SHQY and Child Support Registrar (Child support second review)

[2021] AATA 930

SHQY and Child Support Registrar (Child support second review) [2021] AATA 930 (20 April 2021)

Division:GENERAL DIVISION

File Number(s):      2020/2130

Re:SHQY

APPLICANT

AndChild Support Registrar

RESPONDENT

AndXYCB

OTHER PARTY

Tribunal:Mr Rob Reitano, Member

Date:20 April 2021

Place:Sydney

DECISION

I set aside the decision of AAT1 and in its place I revoke the care determination made on 7 August 2007 with effect from 27 October 2011 and determine that the father had 50% of the care of the child from 28 October 2011 until 31 July 2019 and the mother had 0% of the care of the child in that period.

.........................[sgd]...............................................

Mr Rob Reitano, Member

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

CHILD SUPPORT – percentage of care – period of care - notice of change of percentage of care - revocation of determination of care – whether new determination of care should be made – date of effect of any new determination – decision set aside and substituted

LEGISLATION

Child Support (Assessment) Act 1989 (Cth) s 5, 49, 50, 54A, 54B, 54F, 54G, 54H

Child Support (Registration and Collections) Act 1988 (Cth) s 87AA

CASES

Polec & Staker (2011) 253 FLR 339

Shi v Migration Agents Review Authority [2008] HCA 31

Frampton and La Ponder (Child Support) [2015] AATA 321

SECONDARY MATERIALS

Child Support Guide (22 March 2021)

REASONS FOR DECISION

Mr Rob Reitano, Member

20 April 2021

1. In March 2019 SHQY (mother) became aware that XYCB (father) had in October 2011 notified the Child Support Agency (Agency) that the percentage of care between she and the father concerning their child (child) had changed from equal care of the child to one where the father had complete care of the child, because the mother had left the child with him when she left for New Zealand on 28 October 2011.

2. The Agency, acting upon that advice and after making enquiries, changed the percentage of care for each parent from 50% each to one where the father had 100% care of the child.

3. After 28 March 2019, when the mother discovered what had happened following her departure for New Zealand, she sought to undo the debt she had accumulated for payments in respect of the care of the child by pursuing an objection to the decision to change the percentage of care with the Agency, then with the Administrative Appeals Tribunal (Social Services & Child Support Division) (AAT1) and now with the Tribunal on review.

4. The main issue concerns the percentage of care to be allocated to each of the parents of a child for the purpose of the Child Support (Assessment) Act 1989 (Cth) (Act).

5. I have decided to set aside the decision of AAT1 and in its place have decided to revoke the care determination made on about 7 August 2007 with effect from 27 October 2011 and replace it with a determination that the father had 50% of the care of the child from 28 October 2011 until 31 July 2019 and the mother had 0% of the care of the child in that period. These are my reasons for that decision.

   PROCEDURAL HISTORY

6. On 6 August 2007, a case was registered with the Agency concerning the percentage of care that each parent of the child would have. The child’s parents each had 50% care of the child. This was reflected on the assessment from 31 July 2007.

7. On 2 November 2011, the father told the Agency that the care percentage for the child had changed as of 28 October 2011 because the mother had eschewed the arrangement that was in place by moving to New Zealand leaving the child in the father’s care.

8. On 17 November 2011, a delegate of the Child Support Registrar (Registrar) after confirming the mother’s departure for New Zealand, decided that the father had 100% care of the child. There is no evidence that the mother was at any time given notice of the care percentage decision or was ever served with a copy of the care percentage decision.

9. On 15 March 2019, the Agency wrote to the mother informing her that it had received updated incomes for her and had recalculated the amount of child support that was payable by her to the father for the period 1 September 2012 to 31 March 2019. The mother became aware of that letter on 28 March 2019.

10. On 6 May 2019, the mother attempted to email a form titled ‘Objecting to a Child Support decision’ to the Agency but the email could not be downloaded or opened so that it could be read. A few days later the form was again emailed to the Agency and this time an officer of the Agency was able to read it. The form identified the date of the decision that was being objected to as ‘15 March 2019’. This was obviously predicated on the basis that there was a decision to be found in the 15 March 2019 letter.

11. The form contained no specifications regarding what exactly the decision being objected to was, except that the box titled ‘Other’ alongside the words:

    …if you do not agree with any other decision we notified you of, you may be able to object. You will need to explain what you disagree with, why you believe the decision is incorrect, and you may need to supply evidence to support your objection…

    had a cross next to it. There was no indication despite a box for ticking on the form, that there was any objection to the percentage of care assessment made on 17 November 2011. This was perhaps explained by the fact that it was more likely than not that the mother remained completely oblivious to the fact that that determination had been made.

12. On the form the mother wrote the words:

    In 12 years [the father] nor his mother have questioned our verbal agreement regarding raising [the child]. Requesting monetary support has never come forward in any of our communications. Please see attached Further (sic) relevant information.’

    This was consistent with the mother being still unaware of the determination that had been made on 17 November 2011.

13. The attachment, dated 5 May 2019, recorded the following information:

    I left Australia in October 2011 because of an emotionally tenuous situation.

    I was unaware that I needed to contact Australian human services when I left the country as personal arrangements were already in place.

    There was a verbal agreement between [the father] and myself which involved no child support.

    When I left the country to return to New Zealand it evolved that [the child] would prosper under the care of his Grandmother ([the grandmother]) who stepped up to care tor [the child] fulltime.

    I was never asked for child support although I did remain in contact with [the child] & [the father] since leaving Australia including several trips to Australia, funding a trip to New Zealand and recognizing special celebrations.

    The first letter I received about child support was the March 2019. It is my understanding that [the father] filed a complaint in March of 2018. I was in Australia to visit [the child] and had personal contact with [the father] in June 2018 and no mention was made of him seeking child support or the involvement with Centrelink. The first letter I received was dated 15th March 2019.

14. All of these words indicate that the mother was then completely unaware of the percentage of care assessment made on 17 November 2011. It is consistent with the fact that she was not served with the percentage of care decision made on 17 November 2011 at any time and nor was she given any notice of that decision in or around November 2011.

15. On 10 July 2019, the Agency wrote to the mother and said:

    We received your objection to our decision on 17 November 2011 to reflect on the assessment that is [the father] provides 100% care of [the child] from 29 October 2011.

    By then it was clear that the Agency understood that the decision that was being objected to was the decision to change the percentage of care that had been made on 17 November 2011.

16. On 10 September 2019, an objections officer within the Agency affirmed the original decision and, following an application for review, the AAT1 affirmed that decision on 5 March 2020. 

17. On 9 April 2020, an application was to the Tribunal to review the decision of AAT1.

    THE FACTS

18. A great deal of the narrative of the facts that I recount below is taken from the evidence given by the father’s mother, that is the child’s paternal grandmother (grandmother), who gave evidence after a summons to give evidence was issued to her at the request of the mother. The father did not participate at all in the proceedings despite having notice of them, as was his right. He too was summonsed to give evidence, but after the grandmother gave evidence it was agreed that it was not considered necessary for him to give evidence.

19. Before dealing with the facts as narrated by the grandmother, I should note some things more generally about the grandmother’s evidence. The grandmother gave evidence helpfully, frankly, and truthfully. She answered questions directly and succinctly. It was suggested that the grandmother’s evidence was ‘biased’, by which I gather it was intended to convey that she fashioned her answers in a way that was partial to the father’s (her son’s) interests. That suggestion was never made when the mother’s representative was permitted to question her. There is, in any event, no sound basis at all for such a suggestion given what I have said about the way she presented and the fact that at least some of her evidence was, on its face, inimical to her son’s interests.

20. On 28 October 2011, the mother boarded a plane to New Zealand. She sent a text message to the grandmother which said: ‘I’m on a plane. I’m going to New Zealand. Look after my boy’. It was then apparent, and if it were not it soon became so, that the mother was moving to New Zealand and arrangements would need to be made for the care of the child who was six years of age.

21. At that time, the child was living with his father. About a month after the mother left for New Zealand the grandmother asked the father and the child to move in with her. The father took up that invitation and moved into his mother’s house with his son. The father and the child lived with the grandmother in the grandmother’s home until sometime in about the middle of 2019 when the father moved out, and the son remained living with the grandmother.

22. During the period that the father was living with the grandmother and the child, he would live with them ‘90% of the time’ according to the grandmother, leaving for short periods of time (of maybe a month at a time) for various reasons and later returning. This was the explanation the grandmother gave for having said more recently in a text to the mother that the father had lived with her ‘on and off’ since the mother’s departure for New Zealand. I believe her both for the reasons I have already set out.

23. Since about the end of November 2011 the grandmother has had day to day care of the child attending to his basic care needs, such as ensuring he is fed and washed, taking him to school and to the doctor and so on. She described herself as having assumed the role of the child’s mother. She would consult the father about decisions concerning the child, such as what school he would attend, although the father had the final say in such matters. Before the father moved out, he would take the child on outings and to friend’s places when necessary. The father was the disciplinarian because the grandmother was ‘a softie’.

24. So far as daily living expenses such as for clothes, food and school fees are concerned, the grandmother paid for all of the child’s needs, as she does with her other two grandchildren who also live with her. Until the father moved out, he paid board to the grandmother. The father has paid no board since he moved out, so it would seem that the board was only intended to be paid in respect of himself although that was never made entirely clear. No doubt the board helped defray some of the costs of looking after the child, but it was not expressly paid for that purpose.

25. After the middle of 2019, the child stayed living with his grandmother as he preferred to live with her. Since then the father has visited the child every Sunday and the father spends the day with the child and his other son. On occasions the father drops in during the week and takes the child on various outings.

26. It is important, for reasons that will become clear, that the mother has had the child made available to her on about six occasions since her departure. These were for about a week in April 2012 when she visited him at the grandmothers, about four days in September 2013 when she went with him to the Sunshine Coast, for a few days in late September the same year when she visited him at the grandmother’s house,  for three weeks in December 2015 when the child visited her in New Zealand, for one day in August 2016, one week in late June 2017 and for a few days in June 2018. From these facts it is fairly clear that the child has been made available to the mother when the mother has been in Australia as well as on one occasion in New Zealand.

    ISSUES

27. There are three issues that I am required to consider. First, whether the determination of care in respect of the child made on 31 July 2007 should be revoked; second, if it is revoked whether a new determination of the percentage of care should be made; and finally, if a new determination is made, what date it should have taken effect.  I will deal with each issue separately.

    SHOULD THE DETERMINATION BE REVOKED?

28. The legislative regime that applied in this case is the Act as it stood as at the date at which the Registrar became aware of the changes, namely 2 November 2011. The amendments wrought to the Act by the Family Amendment and Child Support Legislation Amendment (Protecting Children) Act 2018 are not relevant because they had no retrospective effect.

29. There were at that time three sections that related to the revocation of a determination, namely s 54F, s 54G and s 54H. Sections 54F and 54H were expressed to only have application if s 54G did not apply. It is only necessary to consider s 54G as I have concluded that that section applies.

30. Section 54G of the Act provided:

    (1)If:

    (a)a responsible person (the first responsible person) for a child was to have at least regular care of the child during a care period under a determination (the first care determination) made under section 50; and

    (b)the first responsible person has had no care of the child, or has had a pattern of care that is less than regular care of the child, despite another responsible person for the child making the child available to the first responsible person; and

    (c)a determination of the other responsible person's percentage of care for the child has been made under section 50; and

    (d)the other responsible person notifies the Registrar or the Secretary of the matter referred to in paragraph (b) of this subsection within a period that the Registrar considers is reasonable in the circumstances;

    the Registrar must revoke both determinations.

    (2)Note: The Registrar must make new determinations under section 49 or 50 to replace the revoked determinations: see paragraph 49(1)(b) or 50(1)(b).   The revocation of each determination takes effect:

    (a)if the first responsible person never established a pattern of care in accordance with the first care determination--at the beginning of the application day for that determination; or

    (b)if the first responsible person established a pattern of care in accordance with the first care determination but later ceased the established pattern of care--at the end of the day before the day on which the person ceased the previously established pattern of care.

    (3)To avoid doubt, a responsible person never establishes a pattern of care if:

    (a)the responsible person could not have established the pattern of care until a particular period that occurs later in a child support period; and

    (b)the responsible person does not establish that pattern during that particular period.

31. ‘Responsible person’ is defined by s 5(1) as including a parent. ‘Regular care’ for the purpose of the is defined by s 5(2) as having a percentage of care of ‘at least 14% but less than 35%.’

32. The application of the section depends upon the satisfaction of each of the pre-conditions in ss 54G(1)(a) to (d). The first condition is that a responsible person, in this case the mother, was to have at least regular care during a care period under a determination made under s 50, defined as at least ‘14% but less than 35%. The mother had 50% of the care of the child.’ The condition is satisfied.

33. The second condition is that the responsible person had no care or less than regular care of the child despite the other person making the child available to the other responsible person. The mother had less than regular care after she left Australia. The six times she had care of the child, for periods varying between three weeks and a single day over the eight or so year period disposes of any suggestion to the contrary.

34. On each occasion that the mother returned to Australia, and for the three weeks when the child visited her in New Zealand, she had care for the child, albeit for very limited periods of time confined only by what time she chose to spend with the child. There was no suggestion that the child was not made available to her at any time. I find that the child was made available to the mother. The second condition is satisfied.

35. The third condition is that a determination under s 50 of the percentage of care has been made. A determination was made on 31 July 2007. The condition is satisfied.

36. The fourth condition is that the other responsible person, in this case the father, notifies the Registrar or the Secretary of the changed care arrangements within a period that the Registrar considers reasonable. In this case the notification as given within a period of days of the mother’s departure for New Zealand. There can be no serious issue that the notification was made within a reasonable time. The fourth condition is satisfied.

37. As these conditions are satisfied, and as I stand in the position of the Registrar, I am required under s 54G to revoke determination made on 31 July 2007. I do so.

38. The effect of ss 54G(2)(b) is that the revocation takes effect at the end of the day before the person ceased the previously established pattern of care. While the Agency became aware of the change in care percentage on 29 October 2011 by way of notification from the father, the mother left Australia for New Zealand on 28 October 2011 and as such ended the pattern of care on that date. The revocation is effective as of 27 October 2011.

    A NEW DETERMINATION?

39. Section 49 of the Act provided so far as is relevant:

    (1)This section applies if:

    …

    (b)the Registrar:

    (i)     revokes, under Subdivision C of this Division, a determination of a responsible person’s percentage of care for a child that was made under this section or section 50; and

    (ii)    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 or 52 applies in relation to the responsible person.

40. Section 50 of the Act provided so far as is relevant:

    (1)This section applies if:

    …

    (b)the Registrar:

    (i)     revokes, under Subdivision C of this Division, a determination of a responsible person’s percentage of a care for a child that was made under section 49 or this section; and

    (ii)    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.

1. Sub-section 50(3) uses the phrase ‘actual care of the child’. The words ‘actual care’ are not defined by the Act. The question of what constitutes ‘actual care’ was considered in the obiter observations in Polec & Staker where Hughes FM identified the following matters as relevant to the consideration of the determination of care for the purpose of the Act:

   (a)To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, childcare, education, health care, emotional support, supervision, transport and extra-curricular activities?

   (b)To what extent does the person make arrangements for others to meet the needs of the child?

   (c)To what extent does the person pay for the costs of meeting the needs of the child?

   (d)To what extent does the person otherwise provide financial support for the child?

   (e)To what extent does the child provide for his or her own needs or have those needs met from another source?

   (f)To what extent is the child financially independent or financially supported from another source?[1]

   [1] (2011) 253 FLR 339 at [56]

2. The Child Support Guide provides policy guidance to those making decisions under the and refers to the need where doubt exists for the following matters to be considered:

   Determining whether care exists

   An object of the CSA Act is 'that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings' (section 4(2)(c)). The CSA Act does not define the term 'ongoing daily care', however the Registrar will take into account a number of factors in determining whether a person cares for a child.

   In most cases, it will be relatively clear whether and to what extent a person is
   caring for a child. However, where there is doubt, the Registrar will consider
   whichever of the following are relevant to the particular case:

   ·     To what extent the person has control of the child, including having overall responsibility for the child and making:

   o   major decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and

   o   arrangements for others to meet the needs of the child (delegated care).

   ·     To what extent the person meets the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra-curricular activities.

   ·     To what extent the person pays for the costs of meeting the needs of the child.

   ·     To what extent the person otherwise provides financial support for the child.

   ·     To what extent the child provides for his or her own needs or has those needs met from another source.

   ·     To what extent the child is financially independent or financially supported from another source

3. Section 54A of the Act provides:

   Working out actual care, and extent of care, of a child 

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

   (4)This section does not limit section 50, 51, 52 or 54.

   (The underlining is added)

4. Sections 49(1)(b) and 50(1)(b) require, as the determination has been revoked, a determination of the percentage of care for each responsible person under ss 49(1)(b) and ss 50(1)(b).

5. I am required to be satisfied about each responsible person’s pattern of care during such period (known as the ‘care period’) as I consider appropriate. Both sections refer to that satisfaction as being informed by what is known from the past or what is likely in the future: the words are retrospective in referring to the care that the responsible person, ‘has had’, or prospectively in referring to the care that the responsible person, ‘is likely to have’. In short, I am entitled in forming any satisfaction to have regard to the facts as they have unfolded or, alternatively, having regard to what is likely to happen.[2]

   [2] Shi v Migration Agents Review Authority [2008] HCA 31; Frampton and La Ponder (Child Support) [2015] AATA 321 at [54] to [58]

6. Of course, what has happened in the past may in many cases cast light on what is likely to happen in the future. But where the facts are established and known from the past and are capable of forming the foundation for a rationally based decision, a more soundly based approach is to only have regard to those facts which are known in applying both sections. That accords in the view I take with sound administrative practice so far as it places reliance upon known facts in circumstances where they can be found. In this case it is also reliable because the pattern of care appears to have existed over very many years

7. It is necessary then to apply the facts to determine each responsible person’s percentage of care. Sub-section 49(1)(b) applies in the case of the mother and ss 50(1)(b) in the case of the father. The requirement in each of ss 49(1)(b)(i) and ss 50(1)(b)(i) is satisfied, because I have already revoked the existing care determination. The only question in each case concerns the matters referred to in ss 49(1)(b)(ii) and ss 50(1)(b)(ii).

8. I should add that in neither case are s 51 or s 52 relevant because they relate to action that has been taken to ensure a care plan is complied with or a new care arrangement put in place. No such issue arises here as there is no care plan of any kind.

   THE MOTHERS PERCENTAGE OF CARE

9. So far as the mother is concerned, she has had no pattern of care for the child since 28 October 2011. Her short visits to Australia and her three weeks with the child in New Zealand are incapable of establishing any pattern of care. The circumstance in ss 49(1)(b)(ii) is satisfied, namely that the mother had no pattern of care after 28 October 2011. I will determine the appropriate care period so far as the mother is concerned as concluding on the same date as that for the father, namely 31 July 2019. Sub-section 49(3) requires me to determine that the mother’s percentage of care is 0%.

   THE FATHERS PERCENTAGE OF CARE

10. So far as the father is concerned the position is more complicated. Sub-section 50(1)(b)(ii) refers to the requisite satisfaction being ‘during such period…as the Register considers to be appropriate having regard to all the circumstances’. That is defined by the Act as ‘the care period’. In the circumstances, there was a pattern of care from about 30 November 2011 until about 30 July 2019. This was consistent with the grandmother’s evidence that the father moved in about a month after the mother departed and had moved out ‘maybe a little over 12 months ago’ noting that she was speaking as at the date that she gave her evidence on 22 October 2020. As that is the best evidence I have I determine that the appropriate care period is between 30 November 2011 and 31 July 2019. I am satisfied that during that period the father had a pattern of care so it is not necessary to break the period down any further.

11. Sub-section 50(2) requires that I next determine the father’s percentage of care for the child during that period. That percentage must correspond with the ‘actual care’ that the father has had (or irrelevantly in this case is likely to have) in that period.[3]  

    [3] Child Support (Assessment) Act 1989 (Cth), ss 50(3)

12. This is not a case where I should have regard solely to the primary measure of care established by the Act, namely the number of nights spent with a responsible person.[4] To use that as the determinative factor here would ignore completely the significant role played by the grandmother in actually caring for the child. It would not reflect what was the actual position in respect of the actual care of the child.

    [4] Child Support (Assessment) Act 1989 (Cth), s 54A

13. Nonetheless, the number of nights spent with the father is one factor that I consider to be relevant to the actual care for the child. It is significant given that the father lived with the child for a large part, although not all of, the care period. When he was living with the child, he was obviously available at all times to provide emotional, and no doubt when and if necessary, any other support to the child.  He delivered the actual care that is associated with the notion that he was ever present at that time in the child’s life.

14. The father also played a role in the child’s care after he and the child moved into the grandmother’s home.  He participated in decisions about the child’s life, disciplined the child, transported the child to recreational activities, accompanied the child on outings and, not unimportantly in the care of children, was generally present in the child’s life. He was responsible for making the decision to move in with the grandmother, albeit that it was at her suggestion.

15. It is relevant so far as the notional of delegated care is concerned that the father made no real arrangements for the child’s care but simply accepted what the grandmother had proposed. The father did not directly meet many of the costs associated with the care of the child, did not undertake many of the day to day aspects of care for the child such as washing, bathing, feeding and so on.

16. The two most significant matters that affect my determination of the father’s actual care lay in the description of the grandmother, which I accept as accurate, given to her role in the child’s life; namely she had ‘the mother’s role.’ Also, there is the fact that financially it would seem she has undertaken much of the burden of the child’s care. These things are relevant as they demonstrate those aspects of actual care for which the father has not been responsible. His care was directed towards other things that I have identified earlier.

17. I conclude that the percentage of actual care for the child by the father during this time was certainly not insubstantial. I am satisfied that the percentage of actual care that that the father had for the child during the care period is 50%.

    THE DATE EFFECT OF REVOCATION

18. Section 54B of the Act provides:

    Days to which the percentage of care applies if sections 51 and 52 did not apply in relation to a responsible person

    (1)  If:

    (a)a determination of a responsible person’s percentage of care for a child is made under section 49 or 50; and

    (b)sections 51 and 52 did not apply in relation to the responsible person;

    the percentage of care applies to each day in a child support period on and   from the application day unless a revocation of the determination under   Subdivision C of this Division takes effect.

    (2)  The application day is:

    (a)if subparagraph 49(1)(a)(i) or 50(1)(a)(i) applies in relation to the determination—the day on which the application referred to in that subparagraph is made; or

    (b)if subparagraph 49(1)(a)(ii) or 50(1)(a)(ii) applies in relation to the determination—the day referred to in that subparagraph; or

    (c)if paragraph 49(1)(b) or 50(1)(b) applies in relation to the determination:

    (i)     in a case where the revocation of the determination referred to in subparagraph 49(1)(b)(i) or 50(1)(b)(i) takes effect at the beginning of the day referred to in paragraph 54G(2)(a)—that day; or

    (ii)    otherwise—the day that begins immediately after the revocation of the determination referred to in that subparagraph takes effect

19. Section 87AA of the Child Support (Registration and Collections) Act 1988 (Cth) (Collection Act) provides:

    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 percentagedecision; and

    (b)the objection is lodged more than 28 days or, if the person is a resident of areciprocating 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.

    (4)  The notice must:

    (a)set out the reasons for the decision; and

    (b)include a statement to the effect that, if the person is aggrieved by the decision, application may be made, subject to this Act and the AAT Act, to the AAT for review of the decision.

    (5)  A contravention of subsection (4) in relation to a decision does not affect the validity of the decision.

20. Section 87AA(1) of the Collection Act does not have any application in the circumstances because the objection in this case was not ‘lodged more than 28 days…after the care percentage decision was served.’ The care percentage decision was not ever served. The mother’s statements in the ‘Objecting to a Child Support Decision’ form that she emailed to the Agency, in particular the reasons she gives in the attachment, are only consistent with the fact that she was not served with or (and it is not relevant) given notice of any such decision. Further, the letter of 15 March 2019 is not ‘the care percentage decision’, but as it says, merely a recalculation of the amount of child support that was payable.

21. The matter is not one of mere technicality. Service of the actual percentage of care decision would objectively have placed the mother in a position to know that she had 28 days to exercise her rights of review. The decision about a change to a percentage of care, as this case illustrates, may be a very significant one with significant financial consequences to a person affected by it. It should not depend upon a person finding out in some less than clear and less than formal way about the fact of that decision having been made.

22. Also, the giving of the notice of recalculation of the amount payable left the mother to work out for herself why the recalculation had been made to the extent that it was affected by the percentage of care determination which she so obviously did not appear to be aware of. The mother should not have had to engage in guess work about that significant matter. Had she been served with the change in percentage of care decision she would clearly not have needed to engage in a process of guess work.

23. As the mother was not served with the percentage of care decision it follows that the date of effect of the new determination is the day immediately after the revocation comes into effect, namely 28 October 2011 by operation of ss 54B(2)(c)(ii) of the Act. It is not a matter that the Tribunal on review otherwise need trouble itself with.

    CONCLUSION

24. I set aside the decision of AAT1 and in its place I revoke the care determination made on about 7 August 2007 with effect from 27 October 2011 and instead determine that the father had 50% of the care of the child from 28 October 2011 until 31 July 2019 and the mother had 0% of the care of the child in that period.

I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member

............................[sgd]...........................................

Associate

Dated: 20 April 2021

Date(s) of hearing:	25 September 2020, 22 October 2020
Date final submissions received:	16 December 2020
Applicant:	Ms Afa
Solicitors for the Respondent:	Karwan Eskerie (Sparke Helmore Lawyers)
Other Party:	Did not appear