XRCW and Child Support Registrar (Child support second review)
[2022] AATA 1059
•31 March 2022
XRCW and Child Support Registrar (Child support second review) [2022] AATA 1059 (31 March 2022)
Division:GENERAL DIVISION
File Number(s): 2021/4838
Re:XRCW
APPLICANT
AndChild Support Registrar
RESPONDENT
AndDKVK
OTHER PARTY
DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:31 March 2022
Date of written reasons: 28 April 2022
Place:Sydney
The Tribunal is satisfied that the application for review of the decision is lacking in substance. The Tribunal, pursuant to section 42B(1) of the Administrative Appeals Tribunal Act1975, dismisses the application.
..............................[sgd]..........................................
Emeritus Professor P A Fairall, Senior 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
SOCIAL SECURITY - child support – no challenge to share care percentages – only issue before the Tribunal regarding date of effect of AAT1 decision - backdating irrelevant - proceedings inutile – dismissed pursuant to Administrative Appeals Tribunal Act 1975 (Cth) s 42B(1)(a) and (b).
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 42B
Child Support (Registration and Collection) Act 1988 (Cth) s 87AA
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
28 April 2022
On 15 July 2021, the Applicant (‘Mr XRCW’) applied to the Administrative Appeals Tribunal (the Tribunal) for review of a decision made on 30 June 2021 by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1). His application was set down for hearing on 31 March 2022, when I made an oral decision to dismiss Mr XRCW’s application for review. On 1 April 2022, Mr XRCW requested written reasons for the decision to dismiss, which are provided below.
BACKGROUND
On 30 June 2021, the AAT1 made a decision about the care percentages to be used in a child support assessment relating to the applicant Mr XRCW and his former partner, Ms DKVK.
The AAT1 decided (‘the reviewable decision’) that Mr XRCW had a care percentage of 21% and Ms DKVK had a care percentage of 79% in respect of the children from 26 May 2020.[1] The AAT1 also decided that the determination was to take effect from 24 September 2020 due to the operation of subsection 87AA(1) of the Child Support (Registration and Collection) Act 1988 (Cth).
[1] T2/12, para [22].
The Background Facts were stated by the AAT1 in the decision of 30 June 2021 as follows:
2. From 16 July 2019, the assessment of child support that was in place was based on a care percentage of 86% for Ms [DKVK] and 14% for Mr [XRCW] in respect of the children. On 9 June 2020, Mr [XRCW] contacted Services Australia (Child Support) online, and advised that final orders had been made in the Federal Circuit Court of Australia and his care would immediately increase and then increase again from 1 January 2021. He advised he would have care of the children for 115 nights per year from 26 May 2020.
3. On 3 July 2020, Ms [DKVK] was recorded as stating that Mr [XRCW] would have 59 nights with more care occurring in 2021.
4. On 16 July 2020, a decision was made not to vary the care percentages used in the child support assessment.
5. Mr [XRCW] objected to the decision on 24 September 2020 and on 4 December 2020 his objection was allowed. It was decided that Ms [DKVK] had 69% care of the children from 26 May 2020 and Mr [XRCW] had 31% care. It was determined that special circumstances did not prevent Mr [XRCW] from objecting to the decision of 16 July 2020 earlier, and so the change to the care percentage was applied from 24 September 2020; the date the objection was lodged.
…
22. For the care period commencing 26 May 2020 the Tribunal determines Mr [XRCW] had a care percentage of 21% and Ms [DKVK] had a care percentage of 79%.
What care percentages should be used in the child support assessment?
24. Where a parent’s care percentage falls within the range of 14% to 34% they are taken to have regular care of the child and the child support cost percentage is 24%. The Tribunal has determined that Mr [XRCW] had a care percentage of 21% from 26 May 2020 and so there is no change to the cost percentage used in the assessment. As such the mandatory revocation provisions of the Assessment Act do not apply. However, in the interests of ensuring an accurate record of the care history of this case, the Tribunal determines that it is appropriate to exercise the discretion to revoke the existing care percentage determination under section 54H of the Assessment Act from 25 May 2020 and to apply the new care determination from 26 May 2020.
…
DECISION
29. The Tribunal sets aside the decision under review and, in substitution, decides that Ms [DKVK] had a care percentage of 79% and Mr [XRCW] had a care percentage of 21% in respect of the children from 26 May 2020 (with effect from 24 September 2020 due to the operation of subsection 87AA(1) of the Child Support (Registration and Collection) Act 1988.
As noted above, the AAT1 also held that 24 September 2020 was the date from which the new determination took effect, because Mr XRCW did not lodge an application objecting before that date and there was no ‘special circumstances’ justifying backdating of the determination.
The current application was set down for hearing before the Tribunal on 31 March 2022. On 25 March 2022, the Tribunal conducted a directions hearing by telephone to confirm parties attendance on 31 March 2022 and to consider certain requests made by Mr XRCW in anticipation of the hearing. In their Statement of Facts, Issues and Contentions, the Respondent brought to the Tribunal’s attention that the matter might be appropriately dismissed under s 42B(1) on the basis that the application was frivolous, vexatious, lacking in substance or had no reasonable prospects of success.
At the preliminary hearing, Mr XRCW asked whether Ms DKVK, the other party to the matter, would be summonsed to appear at the hearing. He also indicated that he wanted her to produce certain bank statements and her 2019 tax return. Finally, he said that the Child Support Agency (CSA) had deducted certain amounts from his bank account, and he challenged the validity of these withdrawals. Importantly, he did not challenge the care percentages determined by the AAT1. However, he said that he had been prejudiced by the AAT1 decision not to backdate the decision and that he had been overcharged.
I noted that the AAT1 determined that, for the care period commencing 26 May 2020, Mr XRCW had a care percentage of 21%.[2] I noted his acceptance of that determination. I expressed my concern that there did not appear to be any practical utility in the proceedings. As noted by the AAT1:
Where a parent’s care percentage falls within the range of 14% to 34% they are taken to have regular care of the child and the child support cost percentage is 24%. The Tribunal has determined that Mr XRCW had a care percentage of 21% from 26 May 2020 and so there is no change to the cost percentage used in the assessment.
[2] T2/12 [para 22].
Mr XRCW focussed on the issue of backdating. He was concerned about the AAT1 decision not to backdate the variation of care to 26 May 2020. He believed that this aspect of the decision made a difference to the amount of child support he was required to pay.
I pointed out that the various determinations to which he was subject (14, 21, and 31%) fell within the regular care range throughout the relevant period. Therefore the backdating issue would have no impact on the amount of child support he was required to pay during this period. It was apparent from Mr XRCW’s responses to the Tribunal that he did not appreciate that 14% fell within the regular care band.
I indicated that I was inclined to dismiss the proceedings under subsection 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) given his acceptance of the AAT1 decision relating to care share percentages. It appeared to me that the proceedings were lacking in substance and had no reasonable prospect of success. I indicated that I would consider this issue as a preliminary question when the matter resumed on 31 March, but wanted him to have an opportunity to consider it in advance.
I also refused his request to summons Ms DKVK to appear on 31 March 2020, and declined his request to subpoena her bank statements and tax returns.
When the matter returned for hearing on 31 March, I invited Mr XRCW to tell the Tribunal why his application should not be dismissed under subsection 42B(1).
Mr XRCW confirmed that he had no objection to the level of care determination by AAT1. He understood that he had regular care throughout the period. However, he was still concerned that he had been overcharged because the AAT1 had not backdated the order to 26 May 2020. I then indicated that I intended to dismiss the application under subsection 42B(1), for the following reasons.
Mr XRCW did not seek to challenge the findings of AAT1 with regard to the care percentages. Mr XRCW only sought to challenge the date at which the new care percentage was determined to be implemented.
I note that from 16 July 2019, his care percentage was set by the CSA at 14%, and that on 4 December 2020 the CSA determined that he had 31% shared care. On 30 June 2021 the AAT1 determined that his level of care was 21%. At no point did his share of care fall outside the regular care band.[3]
[3] T26/60.
In summary, at all times during the period between 26 May 2020 and 24 September 2020 he had regular care and at no time did he have shared care. At all relevant times he was within the regular care band. There was no challenge to the AAT1 calculation of the respective care percentages.
The only question raised by Mr XRCW before the Tribunal was whether the AAT1 decision on backdating was correct, that is, whether the determination (that his level of care was 21%) should take effect from 26 May 2020 or 24 September 2002. (In passing, I note that I have reviewed the AAT1 decision on the backdating point and agree with it). However, whether the determination takes effect from 26 May or 24 September has no practical effect on the amount of child support Mr XRCW is liable to pay during this period, given that at all relevant times he had regular care. There is therefore no potential advantage for Mr XRCW in these proceedings, which are entirely lacking in substance.
For completeness I note Mr XRCW’s claim that the CSA had improperly deducted money from his account. The jurisdiction of the Tribunal is limited to the decision under review, in this case the AAT1 decision of 30 June 2021. Any objection to specific withdrawals should be taken up directly with the CSA.
I would note however that, at hearing, the Respondent stated the following, by way of explanation as to the debt raised to him by the CSA, with reference to a letter before the Tribunal dated 24 August 2021 from the CSA to Mr XRCW:
[Respondent] What that letter explains is that at the time of processing the AAT1's decision the arrears were created as the Child Support Agency at that time appreciated that it had made an error in relation to the calculation of child support. What 20 appears to have occurred is that when the agency was processing the objection decision back in December of 2020 one of the applicant's and other party's two children was removed from the assessment. Now, that occurred on 4 December and it was not realised until 27 July 2021. So there was a period of seven months in which XRCW was being charged a certain amount in child support but that amount only reflected the cost of one of his children, not both of his children.
I appreciate of course, that that was through no fault of XRCW, that was a fault of the Child Support Agency. However, the fact remains that XRCW was always obliged to pay child support - or always under an obligation to pay child support for both of his children at the relevant time and because that wasn't being done, admittedly through the agency's fault but because that wasn't being done for a certain period when the error was - when it did come to the attention of the Child Support Agency that was rectified in the assessment and so the amount of arrears was created.
While this has no material bearing on this application being dismissed, I include it as it provides a succinct explanation for Mr XRCW and the other party as to why that debt arose.
DECISION
The Tribunal is satisfied that the application for review of the decision is lacking in substance. The Tribunal, pursuant to section 42B(1) of the Administrative Appeal Tribunal Act 1975 (Cth), dismisses the application.
I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member
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Associate
Dated: 28 April 2022
Date(s) of hearing: 31 March 2022 Applicant: Self-represented Solicitors for the Respondent: Mr A. Taverniti, Sparke Helmore APPENDIX 1 - LEGISLATION
Section 5 of the Child Support (Assessment) Act 1989 states:
Cost percentage" has the meaning given by section 55C,
Section 55 C provides:
Working out cost percentages
A parent's or non-parent carer's cost percentage for a child for a day in a child support period is the percentage worked out using the table based on the parent's or non-parent carer's (as the case requires) percentage of care for the child for the day.
Cost percentages
Item
Column 1
Percentage of care
Column 2
Cost percentage
1
0 to less than 14%
Nil
2
14% to less than 35%
24%
3
35% to less than 48%
25% plus 2% for each percentage point over 35%
4
48% to 52%
50%
5
more than 52% to 65%
51% plus 2% for each percentage point over 53%
6
more than 65% to 86%
76%
7
more than 86% to 100%
100%
Subsections 5(2) and 5(3) provide definitions of regular care and shared care
(2) A person has regular care of a child if the person's percentage of care for the child during a care period is at least 14% but less than 35%.
(3) A person has shared care of a child if the person's percentage of care for the child during a care period is at least 35% but not more than 65%.[4]
[4] See also
Key Legal Topics
Areas of Law
Family Law
Administrative Law
Legal Concepts
Appeal
Jurisdiction
Statutory Construction
Procedural Fairness
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