Webster and Webster (Child support) - [2024] AATA 4119

Webster and Webster (Child support) [2024] AATA 4119 (27 September 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2024/PC028008
APPLICANT:  Mr Webster
OTHER PARTIES:  Child Support Registrar
Ms Webster

TRIBUNAL:Member M Martellotta
DECISION DATE: 27 September 2024
DECISION:

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

a)   The existing care determination of 43% care to Mr Webster is revoked as of 26 October 2023.
b)   The existing care determination of 57% care to Ms Webster is revoked as of 31 July 2023.
c)   A new care determination of 93% care to Mr Webster applies from 27 October 2023.
d)   A new care determination of 7% care to Ms Webster applies from 1 August 2023.
e) In the absence of a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988, the Tribunal’s decision has effect from 28 March 2024.

CATCHWORDS

CHILD SUPPORT – percentage of care – change of care occurred – father did not notify Child Support within a reasonable time – existing care determination cannot be revoked – 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 omitted from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of theChild Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

Mr Webster and Ms Webster are the parents of a child (A). On 6 December 2023 Services Australia – Child Support made a decision with respect to the percentages of care determined for A.
Mr Webster objected to the decision on 28 March 2024. His objection was disallowed on 28 May 2024. He lodged his application for review with the Tribunal on 29 May 2024.[1]
[1] An application made by Mr Webster to be represented by his partner was refused on 2 September 2024.
Child Support prepared and distributed a bundle of hearing papers and also provided some supplementary documents (215 pages). Mr Webster provided a bundle of documents (A1–A15).
The Tribunal held a hearing on 16 September 2024. Mr Webster participated by video to present his submissions and evidence. At the time fixed for hearing the Tribunal attempted to contact Ms Webster. Ms Webster had been provided notice of the hearing date and sent SMS reminders. Ms Webster did not appear at the hearing. The Tribunal was satisfied that she had been provided proper notice of the hearing and decided to proceed without taking her oral submissions and evidence.[2]
[2] See the AAT Child Support Review Practice Directions – item 29; paragraph 40(1)(b) of the Administrative Appeals Tribunal Act 1975.
At hearing Mr Webster advised he did not have a copy of the hearing papers but was prepared to have the hearing continue. The Tribunal deferred making a decision so as to arrange for the hearing papers to be resent to Mr Webster and he was provided the…

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: [2024] AATA 4119
Decision Date: 27 September 2024

CaseChat Overview and Summary

This matter concerned an objection by Mr Webster to a care percentage decision made by Child Support on 6 December 2023. Mr Webster received online notice of this decision on the same day, and an updated assessment reflecting the change in care arrangements was sent to him on 11 December 2023. Mr Webster subsequently lodged his objection on 28 March 2024, which was 113 days after he was notified of the decision. The case was heard by Member M Martellotta.

The primary legal issue before the Tribunal was whether Mr Webster's objection was lodged within the prescribed time limit. Specifically, the Tribunal had to determine the date of effect of any review decision allowing the objection, given that it was lodged outside the standard 28-day period. The Tribunal also considered, but did not determine, whether special circumstances existed that would warrant an extension of time under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988.

The Tribunal applied subsection 87AA(1) of the Child Support (Registration and Collection) Act 1988, which stipulates that if an objection to a care percentage decision is lodged more than 28 days after notice of the decision was served, the date of effect of a review decision allowing the objection is the date the objection was lodged. As Mr Webster was served notice on 6 December 2023 and lodged his objection on 28 March 2024, the Tribunal found that the objection was lodged outside the 28-day period. The Tribunal noted that the discretion under subsection 87AA(2) to extend this period due to special circumstances was not an issue before it in the current objection decision.

The Tribunal concluded that the existing care determination could not be revoked based on the objection lodged outside the prescribed time. The decision under review was set aside and substituted, with the effect that the date of effect of any review decision allowing the objection would be 28 March 2024. The Tribunal made no determination under subsection 87AA(2).

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

Subsection 87AA(1) provides that:(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 determinationthe date of effect of the review decision is the day on which the person lodged the objection. In this case Mr Webster objected to the care percentage decision dated 6 December 2023 on 28 March 2024.[10] According to Child Support records Mr Webster received online notice of a decision dated 6 December 2023 that his care arrangement had changed. The Tribunal finds that Mr Webster was served notice of the decision on 6 December 2023. On 11 December 2023 Mr Webster was sent an updated assessment reflecting the new care determination and he lodged his objection on 28 March 2024.[10] A period of 113 days (16 weeks and 1 day). Mr Webster lodged his objection outside of the prescribed 28 days, which means the date of effect of a review decision to allow the objection is the date he made his objection – 28 March 2024. The Tribunal has noted subsequent care percentage decisions made by Child Support are not before the Tribunal. Those are separate decisions with their own review rights. Subsection 87AA(2) of the RC Act provides a discretion to make a determination that subsection 87AA(1) applies as if the reference to 28 days were a reference to a longer period as determined to be appropriate if special circumstances exist which prevented Mr Webster from lodging his objection within the relevant period. A decision to exercise the discretion is an original decision with its own rights of review; this issue has not been considered in the objection decision under review by the Tribunal. For that reason, the Tribunal does not make a determination under subsection 87AA(2) of the RC Act.

Ratio Decidendi

Legal Principle Established

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