YJYD and Child Support Registrar (Child support second review)
[2024] AATA 3500
•3 September 2024
YJYD and Child Support Registrar (Child support second review) [2024] AATA 3500 (3 September 2024)
Division: GENERAL DIVISION
File Number(s): 2021/9543
Re: YJYD
APPLICANT
And Child Support Registrar
RESPONDENT
And TGHT
OTHER PARTY
DECISION
Tribunal: Member Lee Benjamin
Date: 3 September 2024
Place: Brisbane
The Tribunal sets aside the decision under review and in substitution, determines that the change in care of the child commenced from 24 April 2020. The effect of that decision is that the father (the Applicant) has 0% care and the mother (the Other Party) has 100% care from this date for the care period (24 April 2020 to 14 January 2021).
...............................[SGD].........................................
Member Lee Benjamin
Names used in this published decision 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 (Cth).
Catchwords
CHILD SUPPORT – appeal of Social Services and Child Support Division decision – where dispute exists between parents as to care provided during relevant period – whether existing care determination should be revoked – new percentage of care attributed – decision set aside and substituted
Legislation
Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Cases
Child Support Registrar v CMU23 [2024] FCA 109
REASONS FOR DECISION
Member Lee Benjamin 3 September 2024
WHAT HAPPENED?1
1.The decision under review is the decision made by the Administrative Appeals Tribunal (Social Services and Child Support Division) (AAT1) on 5 November 2021 that set aside the decision of the objections officer of Services Australia (the Agency) made on 30 June 2021 and in substitution, decided that the change in care of the child commenced from 24 April 2020. The effect of that decision is that the father (the Applicant) has 0% care and the mother (the Other Party) has 100% care from this date.
2.The Applicant and the Other Party are the separated parents of [redacted] born in 2008 (the child).
3.The child support case commenced on 14 September 2011.
4.The existing care determination was that the Applicant had 49% care and the Other Party had 51% care of the child for a period from 19 May 2012.
5.On 20 July 2020, the Other Party notified the Agency of a change in care. She advised that she had 100% care of the child from 23 March 2020.
6.On 23 November 2020, an authorised officer of the Agency decided that the Other Party had 100% care of the child from 18 April 2020.
7.On 25 January 2021, the Applicant contacted the Agency about the objection process. On 22 February 2021, the Applicant objected to the care decision and made an “extension of time request”. The objections officer treated the objection as being lodged outside of the 28 day timeframe.
1 The Respondent’s Statement of Facts, Issues and Contentions helpfully sets out the procedural history and background information (Exhibit R1, p 1-2, para 1, 4-14).
8.On 30 June 2021, the objections officer disallowed the objection.
9.The Respondent notes that the objections officer originally part allowed the objection and found that an interim care determination could be made. However, the objections officer corrected the decision before it was sent to the parties.
10.On 8 July 2021, the Applicant applied to the AAT1 for review of the objection decision.
11.On 5 November 2021, the AAT1 set aside the decision under review and substituted a decision that the change in care of the child commenced on 24 April 2020. The AAT1 made the following findings:
·the Other Party had 100% care from 24 April 2020; and
·the Applicant did not take “reasonable action” as required for an interim care decision.
12.On 7 December 2021, the Applicant sought review of the AAT1 decision to the General Division of the Administrative Appeals Tribunal (AAT2).
WHAT QUESTION MUST BE ANSWERED?
13.A percentage of actual care is determined under either s 49 or s 50 of the Child Support (Assessment) Act 1989 (Cth) (Assessment Act). The essential difference between s 49 and s 50 is that s 49 applies if the Respondent is satisfied that a responsible parent has had, or is likely to have, no pattern of care during the care period. Where the decision maker is satisfied that a responsible parent has had, or is likely to have, a pattern of care, s 50 applies. If no pattern of care is found, the Tribunal must determine the percentage of care to be 0% for that parent (s 49(2)-(3) of the Assessment Act). If a pattern of care is found for one or both parents, the Tribunal must determine a percentage of care for the parent that corresponds with the actual care of the child that has occurred, or is likely to occur, during the care period (s 50(2)-(3) of the Assessment Act).2
2 Exhibit R1, p 6, para 33.
14.Pursuant to s 49(3) and s 50(3) of the Assessment Act, the care percentage must correspond with the actual care a person has of the child during the care period.3
15.The Applicant and Other Party are now not in dispute that on 24 April 2020, the existing pattern of equal shared care for the child changed and led to the Other Party providing 100% care of the child. The Respondent contends, and I accept, that the Tribunal is therefore required to revoke the existing care percentage determinations, either under s 54F or s 54G of the Assessment Act.4
16.In this case, the Tribunal:
(a)Must revoke the existing care determination pursuant to s 54F where a new care percentage determination made under s 49 or s 50 would change the cost percentage for the child; or
(b)Must revoke the existing care determination pursuant to s 54G, where, under a new care percentage determination, one of the parents who was previously assessed to have at least regular care of the child would now be determined to have less than regular care despite the child being made available by the other parent and the other parent notified the Respondent of this circumstance within a reasonable period; or
(c)May revoke the existing care determination pursuant to s 54H, where a new care percentage determination, if it was to be made, would change the care percentage and s 54F and s 54G do not apply.5
17.The key question for the Tribunal therefore is under which of the foregoing provisions must the existing care percentage determinations be revoked?
WHAT IS THE ANSWER TO THE QUESTION?
18.In my view (and I find that) the existing care determinations must be revoked under s 54F:
3 Exhibit R1, p 6, para 34.
4 A subsequent care decision has been made which applies from 15 January 2021 and provides that the Applicant had 21% care and the Other Party had 79% care. Any decision made by this Tribunal will therefore only apply until 14 January 2021. Accordingly, the care period for the purposes of the present application is 24 April 2020 to 14 January 2021 (Exhibit R1, p 7, para 39).
5 Exhibit R1, p 7, para 43.
(a)the Other Party’s existing determination of percentage of care is revoked under s 54F of the Assessment Act, and a new determination of percentage of care is made under s 50(1)(b) of the Assessment Act because the Other Party had a pattern of care after the change of care date, that is, 100% care; and
(b)the Applicant’s existing determination of percentage of care is also revoked under s 54F of the Assessment Act, and a new determination of percentage of care for the Applicant must be made under s 49(1)(b) of the Assessment Act because the Applicant had no pattern of care after the change of care date, that is, 0%.
WHY IS THIS THE ANSWER TO THE QUESTION?
19.Section 54H can only apply if ss 54F and 54G do not apply (s 54H(1)(e)). Further, section 54F can only apply if s 54G does not apply (s 54F(1)(e)).6
20.Section 54G deals with situations where a person who is responsible for a child was to have at least regular care of the child, but instead they either had no care of the child or a pattern of care that is less than regular care of the child, despite another person who is responsible for the child making the child available. In that case, if a determination of the percentage of care for the child has been made and the other responsible person gives notice the pattern of care is less than regular care of the child, despite the child being made available within a reasonable period, the Respondent must revoke both determinations.
21.For the purposes of s 54G, the Tribunal is required to consider:7
(a)Whether the Other Party’s existing care was at least regular care and reduced to below regular care:
oThe Respondent says that the Applicant’s existing care determination was 49%, and the Applicant and the Other Party agree that the Applicant’s care reduced to less than regular care (i.e., 0% care).
(b)Whether the child was being made available to the Applicant:
6 Exhibit R1, p 7, para 44.
7 Exhibit R1, p 7, para 45.
oThe Other Party states that the reason the child did not go into the Applicant’s care was mental health concerns (including suicide ideation). The Applicant claims, and the Other Party concedes, that the Other Party withheld care on the basis of the child’s mental health concerns.
(c)Whether the Other Party notified the Agency of the change in care within a period that was reasonable in the circumstances:
oThe Other Party notified the Agency of a change of care on 20 July 2020. The Applicant and the Other Party agree that the change in care was on 24 April 2020.
22.In my view, it follows that s 54G does not apply in the present case because the child was not made available to the Applicant. The Other Party appears to have had a reasonable basis for not making the child available to the Applicant, given the child’s mental health concerns.
23.Section 54F provides the Respondent must revoke a determination of a percentage of care for a child if they are notified, or otherwise become aware, that the actual care of the child does not correspond with the existing percentage of care and the Respondent is satisfied the cost percentage for the child would change if the Respondent were to determine another percentage of care for the child. As mentioned above, this section can only apply if s 54G does not.
24.Cost percentages are relevant to any decision to change a care determination under s 54F of the Assessment Act. There are a series of bands of care percentages which correspond with bands of cost percentages. As discussed above, if a change in the care percentage causes a change in the cost percentage, the Respondent must revoke the existing care percentage determination. Those bands are:
Item Percentage of care 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%
25.For the purposes of s 54F, the Tribunal is required to consider:8
(a)Whether the care of the child that is actually taking place does not correspond with the existing care percentage determination: s 54F(1)(a):
oThere is no dispute between the Applicant and the Other Party that the care of the child that is actually taking place does not correspond with the existing care percentage determination.
(b)Whether the responsible person’s cost percentage for the child would change if a new care percentage determination was made: s 54F(1)(b):
oThe cost percentage for the purposes of s 54F(1)(b) is to be worked out in accordance with the table in s 55C of the Assessment Act.
oThere does not appear to be a dispute between the Applicant and the Other Party that the Applicant’s care reduced from 49% to 0% which changes the cost percentage from 50% to nil.
26.In my view, it follows that s 54F applies in the present case, and requires the Tribunal to revoke the existing care percentage determinations.
27.Given my finding that s 54F applies in this case, it is unnecessary for me to consider the application of s 54H.
28.The Respondent contends that, if the Tribunal decides that the existing care percentage determinations are required to be revoked under s 54F of the Assessment Act (as in this case), this will have the consequence that s 51 of the Assessment Act cannot apply to the new determinations that the Tribunal is required to make under s 49 and s50 of the Act. Accordingly, the Respondent says that the Tribunal is precluded from making interim care determinations under s 51.9 I accept that the Tribunal is unable to make an interim care determination under s 51.
8 Exhibit R1, p 8, para 47.
9 Exhibit R2, p 3, para 13.
29.This outcome flows from the terms of s 53 of the Assessment Act, which prescribes circumstances in which s 51 does not apply. Section 53(1) provides as follows: 10
Section 51 does not apply in certain circumstances
(1) Section 51 does not apply in relation to a responsible person in relation to whom a determination is to be or has been made under section 49 or 50 if:
(a) in a case where subparagraph 49(1)(a)(i) or 50(1)(a)(i) applies in relation to the determination--the day the application referred to in that subparagraph is made is after the end of the maximum interim period for the determination; or
(b) in a case where subparagraph 49(1)(a)(ii) or 50(1)(a)(ii) applies in relation to the determination--the day referred to in that subparagraph is after the end of the maximum interim period for the determination; or
(c) the Registrar has revoked the determination under section 54F or 54H.
30.The Respondent submits that s 53(1)(c) operates such that once a determination under s 49 or s 50 has been revoked under s 54F or s 54H (as the case may be), s 51 does not apply in relation to a responsible person in relation to whom a determination is to be made under s 49 or s 50. The effect of this is that in the event the Tribunal revokes the existing care percentage determinations under s 54F, s 51 would not apply to the parents in the circumstances of the present case.11 I accept the Respondent’s submissions on the basis of the decision in Child Support Registrar v CMU23.12
31.It follows that as the existing care percentage determinations in this case are revoked under s 54F of the Assessment Act, it is not open to the Tribunal as a matter of law to proceed to make determinations pursuant to s 51. Rather, the Tribunal must proceed under ss 49 and 50 of the Assessment Act to reflect the actual care provided by the parents during the care period13 which, as I have already found, is 100% care to the Other Party and 0% to the Applicant.
32.In relation to the date of effect of revocation of the existing care determinations, the new percentages of care will apply from the date of the care change for the Applicant (person with decreased care) (i.e., 24 April 2020) and from the date of notification for the Other Party (person with increased care) (i.e., 20 July 2020).
10 Exhibit R2, p 4, para 14.
11 Exhibit R2, p 4, para 15.
12 [2024] FCA 109.
13 Exhibit R2, p 5, para 20.
DECISION
33.The Tribunal sets aside the decision under review and in substitution, determines that the change in care of the child commenced from 24 April 2020. The effect of that decision is that the father (the Applicant) has 0% care and the mother (the Other Party) has 100% care from this date for the care period (24 April 2020 to 14 January 2021).
I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Member Lee Benjamin
……………[SGD]………………
Associate
3 September 2024
Date/s of Hearing: 27 February 2024, 5 July 2024
Applicant: YJYD
Respondent Representative: Mr Aaron Taverniti of Sparke Helmore
Other Party: TGHT
ANNEXURE A
EXHIBIT
DESCRIPTION OF EVIDENCE
DATE OF DOCUMENT
DATE RECEIVED
Tr1.
Section 37 T-Docs (T1-T107)
-
25/01/2022
R1.
Respondent’s Amended Statement of Facts, Issues & Contentions (including list of authorities) 27/10/2023
R2.
Interim care submissions
09/04/2024
OP1.
Medical Certificate
27/07/2021
27/10/2023
OP2.
Student Profile
-
03/11/2023
0