ZGCJ and Child Support Registrar (Child support second review)

ZGCJ and Child Support Registrar (Child support second review) [2020] AATA 4481 (9 November 2020)
Division:GENERAL DIVISION
File Number: 2019/4413
Re:ZGCJ
APPLICANT

AndChild Support Registrar
RESPONDENT

AndSZFC
OTHER PARTY

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:9 November 2020
Place:Perth

The Reviewable Decision, being the decision of the AAT1 dated 19 June 2019, is varied as follows:
(a)the date of “15 June 2018” is deleted and substituted with the date of “30 May 2018”. That is, the Applicant provided 0% care and the Other Party provided 0% care of the child commencing on 30 May 2018; and
(b)in accordance with s 43(6) of the Administrative Appeals Tribunal Act 1975 (Cth), the date of effect of the Tribunal’s decision is 23 November 2018.

........................[Sgd]................................................
Senior Member Dr M Evans-Bonner
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 (Cth).
CATCHWORDS
CHILD SUPPORT – percentage of care – whether change in pattern of care – whether existing determination of care should be revoked – when actual care changed – date of revocation – date of notification – date of effect – child engaged in full-time employment – date when mother ceased to provide care for child – whether special circumstances existed that prevented Father lodging objection – whether misleading information from the Department prevented Applicant from lodging objection within time – AAT1 decision varied

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 43(6)
Child Support (Assessment) Act 1989 (Cth), No. 124 of 1989 Compilation No. 55 – ss 49, 54A, 54F, 54F(2)
Child Support (Registration and Collection) Act 1988 (Cth), No. 3 of 1988 Compilation No. 61 – ss 87AA, 87AA(1), 87AA(2)

CASES
Polec v Staker (2011) 253 FLR 339

SECONDARY MATERIALS
Guides to Social Policy: Child Support Guide – [2.2.1], [4.1.8]

REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
9 November 2020
THE APPLICATION

The Applicant is the father and the Other Party is the mother of a child born in 2001.
The Applicant is the liable parent and he commenced paying child support for the child following an assessment dated 31 January 2002.
In this application the Applicant is seeking review of a decision of the Social Services and Child Support Division (AAT1) of the Administrative Appeals Tribunal (Tribunal), made on 19 June 2019 (AAT1 Decision), in the General Division of the Tribunal (AAT2).
APPLICABLE LAW
The applicable versions of the legislation are:
(a)Child Support (Assessment) Act 1989 (Cth), No. 124 of 1989, Compilation No. 55, as it was from 21 October 2016 to 22 May 2018 (Assessment Act); and
(b)Child Support (Registration and Collection) Act 1988 (Cth), No. 3 of 1988 Compilation No. 61, as it was from 17 November 2016 and 30 April 2018 (Registration and Collection Act).
The applicable policy is the Guides to Social Policy: Child Support Guide (the Guide).
BACKGROUND
Since 1 July 2008, the child support assessment was based on the Applicant having 0% care of the child and the Other Party having 100% care of the child (T26/175-176) (Existing Care Determination).
An electronic file note made by the Child Support Agency (Department) records that on 23 May 2018 an officer from the Department telephoned the Applicant’s mother, who is his representative (Applicant’s Representative), regarding overdue child support (T25/114).
This note stated that the Applicant’s Representative said that the Applicant was reluctant to pay child support “due to child possibly not living with his mother”. It recorded that the Applicant’s Representative was told that child support was still payable because the Department had not been advised of any care change. The note recorded that the Applicant’s Representative advised that “she is not sure if the child is stil [sic] [at the Other Party’s house] and whose responsibility is it [sic] to notify of care change”. The note stated that the Applicant’s Representative was advised that either parent could tell the Department, and that the Department would then call the other parent to clarify.
The note further recorded that “[n]o care change taken as [Representative] not sure” and that “[Representative] asked to give her a week and she will make the payment…” (T25/114).
A further electronic file note records that the Departmental officer telephoned the Applicant’s Representative the following week on 30 May 2018 as discussed in the telephone conversation of 23 May 2018 (T25/115-116).
In this conversation, the Applicant’s Representative confirmed that the Applicant had not made the child support payment because he believed that the Other Party was no longer entitled to child support. The Applicant’s Representative stated that the Applicant believed that the child was no longer living with the Other Party and possibly had not been for some time. The Applicant’s Representative advised that the child had paid employment, is often away working and that when he returns home, he stays with friends.
The Applicant’s Representative further stated that the Applicant had attempted to find out more information but “short of stalking” did not know what to do. The Applicant’s Representative stated they had “limited information” and were “reluctant to supply any” because she did not want the child getting into trouble.
In this telephone conversation of 30 May 2018, the officer stated that she would refer the information to the case officer who would contact the Other Party. The Applicant’s Representative was advised to call back by the close of business on 8 June 2018 to obtain an update (T25/115-116).
On 6 June 2018, the Other Party telephoned the Department, with the call being recorded in an electronic file note (T25/117). The Other Party advised that there were no changes to her income or her care of the child. She advised that the child is 100% in her care, and that the child had not left her care. Consequently, the Departmental officer recorded in the note that as the Other Party “has confirmed there has been NO change to care level, no further action will be taken at this time” (T25/117).
A further electronic file note confirms that on 8 June 2018 the Applicant’s Representative telephoned the Department (T25/118). She stated again that she had heard the child was no longer in the care of the Other Party, that he may be living and working independently, but that “they have nothing definite right now”. The officer stated that the Department had had a conversation with the Other Party but there was no “concrete evidence” that the child was no longer in her care.
The file note of 8 June 2018 also recorded that the Applicant’s Representative was told “it appears that we don’t have a pending care decision and I said that [the Representative] can lodge one” and on the case that there were arrears “needs to be addressed”. The Applicant’s Representative was given until 15 June 2018 to discuss the matter with the Applicant but was told that if he did not do so by 15 June 2018, the Department would commence enforcement to recover the arrears (T25/118).
On 15 June 2018, the Applicant advised the Department of a change of care, namely that both parties had 0% care of the child from 29 December 2017 (see electronic file note at T25/119). The Applicant further advised the Department that the child was working full-time on a three weeks on, one week off arrangement, and that the child stays with a friend on his week off. The Applicant advised that the child sent him a text message in January 2018, which confirmed he was working full-time.
Also, on 15 June 2018, an officer from the Department made two unsuccessful attempts to telephone the Other Party. The Department issued her with a letter asking the Other Party to contact the Department to discuss the change of care by 29 June 2018 (see electronic file note at T25/121).
On 18 June 2018, the Applicant’s Representative telephoned the Department to advise that the Applicant had telephoned the Department on 15 June 2018. She wanted to check what was happening and if anything further was required. She advised that the child had been staying with the Applicant that weekend, that he had a tax file number and was working. The Applicant’s Representative was advised that the Department had attempted to contact the Other Party and had sent a letter, and that if the Department did not hear from the Other Party they may contact the Applicant to request evidence (see electronic file note at T25/122).
An electronic file note records that the Other Party contacted the Department on

26 June 2018. The Other Party disputed that she had 0% care of the child and said that the Applicant was “not telling the truth”. She confirmed that the child was working three weeks on, one week off, but said that the child still lived with her and all his “stuff” remained at her house. The Other Party further stated that she still supported the child and provides ongoing daily care for the child (T25/123).
The Applicant’s Representative contacted the Department on 4 July 2018 to check if any further information was needed. An electronic file note confirms that the Applicant’s Representative was told that as both parties disagreed, each party had to provide relevant information and evidence to support their claims. She was also told that if a care decision was made in favour of the Other Party, the Applicant may wish to lodge an objection application (T25/130).
Further electronic file notes confirm that the Applicant’s Representative contacted the Department on 16, 24 and 30 July 2018. In summary, the Applicant’s Representative stated on these occasions that the Applicant would not be able to provide further evidence and asked if the Department could access the systems of the Australian Taxation Office regarding the child’s income. She was advised that this was possible, but this does not necessarily mean that there was a change of care (T25/131-133). The electronic file note of 30 July 2018 recorded that the Other Party had produced documents to show that the child was living at the same address as her until 27 June 2018 (T25/133).
On 10 August 2018, a new determination of the care percentage decision was made that the Applicant had 0% care of the child, and the Other Party had 0% care of the child with effect from 26 June 2018 (T25/134-136; T11/50-53). This was the date that the mother changed her address and was no longer living at the same address as the child (T25/136).
On 20 August 2018, the Applicant lodged an objection to the 10 August 2018 determination. The grounds for the objection were that: the child had been employed full time since

1 February 2018 or earlier; the child stayed with friends on his week off; and the child had not been in the care of the Other Party since that time (T13/72-73; T25/141).
On 18 October 2018, an officer of the Department telephoned the Applicant and advised him that the objection would not change the current arrears he owed. The electronic record of the conversation notes that the Applicant agreed to withdraw the objection (T25/146). This withdrawal was confirmed in a letter to the Applicant dated 23 October 2018 (T14/74).
However, the Applicant’s Representative telephoned the Department on 22 October 2018 regarding progress of the objection. The electronic file note states that the Applicant’s Representative was advised that the Applicant had spoken to an officer of the Department last week and that the Applicant had withdrawn his objection. It further recorded that the Applicant’s Representative was “concerned by this” and as the Applicant “would be at work [he] would not be able to talk”. She stated her belief that the objection should continue as the Applicant “should not be paying for the period the child has not been living with the other parent” (T25/148).
The file note of 22 October 2018 indicated that the matter would be referred to the Department’s care objections section to assist further. This happened on the same date, with another electronic file note recording an internal Departmental conversation where the care objections section advised that the case was “currently ended”, and so continuing the change of assessment application was not an option (T25/149).
However, the note further stated that the decision of 10 August 2018 (set out in paragraph [21] above) may have been invalid because a future care event had been recorded, which was incorrect (T25/149). The Applicant’s Representative was advised and discussed this potential error with a Departmental officer on 22 October 2018, with the issue being referred to another section of the Department for policy advice (T25/150-151).
The file note of the telephone discussion also noted that the Applicant’s Representative “raised that she reported the change to us on 30 May 2018” and that “[the Departmental officer] advised [the Departmental officer] can see this, and no decision was made (also no exact [date of effect] advised)” (T25/151).
On 23 October 2018, the Department contacted the Applicant and clarified that an objection would not achieve the outcome sought by the Applicant. This was because the Department could “not change the date of notification as this is what determines [the] date of effect in [the] assessment”. The note stated that the Applicant, “will have to object to the date of effect and this is required in writing with an EOT [extension of time application]” (T25/152).
On 30 October 2018, after reviewing the circumstances of the error, a review officer of the Department determined that the care decision of 10 August 2018 “should be made invalid as Child Support doesn’t have the authority to make a future care decision”. Under the heading, “impact”, the review officer recorded, “[a]s this is a past event, it wont [sic] have much of an impact on the case” (T25/155).
On 2 November 2018, the Applicant’s Representative telephoned the Department to discuss lodging an objection to the case that had ended and was sent an objection form in the mail (T25/156).
On 5 November 2018, the Applicant lodged an application for a change of assessment for the period 29 December 2017 to 26 June 2018 (T15/75-78).
In a letter dated 8 November 2018, the Applicant was advised that his application for a change of assessment had not been accepted by the Department (T16/79). This was because the case had now ended, and a change of assessment could only be lodged if an active case existed (T25/159).
On 15 November 2018, internal Departmental policy advice was delivered regarding whether the decision of 10 August 2018 should be made invalid. The policy advice was that no future care determination had been made and that the decision-maker had made a valid decision within the law (T25/157-158). This was communicated to the Applicant’s Representative in a telephone conversation with the Department on 15 November 2018 (T25/159). In this telephone conversation with the Applicant’s Representative, the Department confirmed that the Applicant would need to lodge a new objection with an extension of time application because the Applicant had withdrawn his original objection (of 20 August 2018) and no actual decision had been made.
The Applicant lodged an objection to the 10 August 2018 decision on 23 November 2018 (T17/80-84; T19/86-89). The date of the decision was incorrectly described by the Applicant in his objection application form as 25 June 2018 (T17/82).
On 11 February 2019, an objections officer of the Department disallowed the Applicant’s objection (Objection Decision). The objections officer found that the Other Party ceased providing financial and emotional support to the child from 26 June 2018 when she ceased living with the child and consequently that each party had 0% care of the child from that time (T20/90-93).
On 13 March 2019 the Applicant applied to the AAT1 to review the Objection Decision (T21/94-105).
As noted above, on 19 June 2019, the AAT1 made the AAT1 Decision which set aside the Objection Decision and substituted a new decision. In summary, the AAT1 accepted that the Other Party provided 0% care of the child from 29 December 2017 (T2/18, para [26]) but that pursuant to s 54F(2)(c) of the Act the revocation of the existing determination took effect on 14 June 2018 (paragraph [30]), and consequently that neither party had care of the child from 15 June 2018. Further, the AAT1 decided that, by operation of s 43(6) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), the date of effect was 23 November 2018.
On 23 July 2019, the Applicant sought review of the AAT1 Decision in the AAT2 (T1).
ISSUES
The issues that require determination in this review were accurately summarised by the Registrar in paragraph [18] of the Registrar’s supplementary written submissions dated

7 July 2020. They are:
(c)Issue 1: whether the Existing Care Determination should be revoked; and
(d)Issue 2: if so, from what date; and
(e)Issue 3: if so, what the percentage of care under the new determination ought to be, and from what date; and
(f)Issue 4: the date of effect of the new determination.
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on 18 June 2020 by telephone, in accordance with the Tribunal’s policy not to conduct in-person hearings as a temporary protective measure due to the COVID-19 pandemic. The Tribunal thanks the parties for their cooperation in appearing in this manner.
The Applicant participated in the hearing, with his mother appearing as his representative. Mr Defranciscis appeared for the Registrar. The Other Party did not participate in the hearing or make any submissions, with the Tribunal Registry’s attempts to contact her being unsuccessful.
The Tribunal admitted the following materials into evidence at the hearing:
(a)Email from the Applicant’s Representative dated 30 December 2019 attaching a “Compilation of evidence for AAT 2^nd Review” comprising 31 pages (Exhibit A1);
(b)Email from the Applicant’s Representative dated 26 September 2019 attaching a “Supporting document for [the Applicant’s] 2^nd AAT Review” comprising 2 pages (Exhibit A2);
(c)Email from the Applicant’s Representative dated 14 August 2019 attaching a two-page written submission (Exhibit A3);
(d)Section 37 (T-Documents) numbered T1 to T26 and comprising 179 pages (Exhibit R1); and
(e)Registrar’s Statement of Facts and Contentions dated 5 December 2019 (Exhibit R2).
At the hearing the Tribunal requested further submissions from the parties, and made a corresponding direction dated 3 July 2020. Consequently, the Tribunal received the following written submissions:
(a)Registrar’s supplementary written submissions dated 7 July 2020; and
(b)An email from the Applicant’s Representative dated 9 July 2020.
The Other Party did not make any submissions despite being given the opportunity to do so.
CONSIDERATION
As outlined in the background section above, there was some dispute between the Applicant and the Other Party as to when the Other Party ceased to provide care for the child. The Applicant’s view was that the Other Party ceased to provide care for the child from 29 December 2017 on the basis that the child was working full-time (in a three weeks on, one week off job), and because in his week off he was staying with friends. However, the Other Party maintained that from that time she still provided ongoing daily care for the child, and that the child still lived with her.
In summary, the Tribunal must determine the percentage of care that the Other Party and the Applicant had of the child from the date of the care change. The percentage of care must correspond to the actual care of the child during the care period.

The length of a care period is not specified in the Assessment Act. However, the Guide states the following under the heading “care period” at [2.2.1]:
A care period is the period over which care is assessed to determine the care percentages for each parent or non-parent carer. A care period is generally a 12-month period from the day on which the actual care of a child began or changed…
Section 54A of the Assessment Act provides that the actual care of the child can be calculated with reference to the number of nights that the child was, or is likely to be, in the care of the person during the care period. Specifically, s 54A provides:
(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.
However, the Tribunal is not limited to considering the amount of nights that the child is in the care of a parent and may consider a broader range of factors. These factors were explained in the following excerpt at [2.2.1] of the Guide which provides:
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:
◦ major decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and
◦ 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.
In Polec v Staker (2011) 253 FLR 339, 348 [56]–[57] (Polec), Federal Magistrate Hughes of the Federal Magistrates Court (now the Federal Circuit Court) similarly outlined the applicable factors as:
56.In my view, in determining whether and to what extent a person has care of a child for the purpose of the Child Support (Assessment) Act and the Child Support (Registration and Collection) Act, it is necessary to consider the following:
a.To what extent does the person meet 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?
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?
57.An analysis of the evidence in relation to these considerations should assist the Tribunal in determining whether or not there has been a child support terminating event or a change in the percentage of care for the child provided by the first respondent.
The evidence before the AAT2 on this issue is the same as the evidence that was before the AAT1. The AAT2 has reviewed this evidence and is of the view that it was succinctly and accurately summarised by the AAT1 at paragraphs [18] to [22]. Specifically, the AAT1 stated:
18. The additional evidence provided to the Tribunal by [the Applicant] is a text message exchange between [the Applicant] and [the child]. On 17 January 2018 [the Applicant] asks, “How ya goin mate. Any plans for this weekend”. On 19 January 2018 [the child] responds, “Sorry mate just got back from 3 week swing out bush doing roller work”.
19. Although [the Other Party] did not participate in the hearing the Tribunal notes that during a conversation with a child support officer on 26 June 2018 she confirmed [the child] was working three weeks on and one week off and said she was still providing ongoing daily care. In a further conversation with a child support officer on 17 December 2018 [the Other Party] said [the child] commenced working before May and lived on site for three weeks. [The Other Party] told the child support officer that during the week [the child] was at home she did his washing, fed him and supported him emotionally.
20. The Tribunal notes the following relevant documents in evidence from the Child Support Agency:
·a receipt dated 19 January 2018 from [name omitted] Medicine issued to [the child] with the details showing payment made in cash by [the child];
·a licence and motor injury insurance policy issued by the Western Australian Department of Transport on 15 February 2018 in the name of [the child];
·a photocopy of a Medicare card and a driver's licence in the name of [the child] with the photocopy certified by a pharmacist and dated 20 April 2018; and
·a letter from the Australian Taxation Office addressed to [the child] dated 24 May 2018 advising him of his new tax file number.
21. The driver's licence and other documents have the same residential address for [the child]. According to the Child Support Agency this address is the same as that recorded at the time for [the Other Party].
22. The Tribunal also notes in evidence a third-party statement dated 21 August 2018 from [the child’s half-brother] the adult son of [the Applicant]. In his statement [the child’s half-brother] says he has been in Facebook contact with his half-brother [the child] since September 2017 and [the child] “stated clearly to me” that he “has been living independently, making his own money and decisions at least since December 2017”.
After considering this evidence, the AAT2 agrees with the following reasoning given by the AAT1 at paragraphs [25] and [26]:
25. The evidence is not conclusive as to the exact date when [the child] commenced work and when [the Other Party] may no longer have been providing care for him. The text message from [the child] to [the Applicant] indicates [the child] was working at least from 29 December 2017. This is supported by the third-party statement from [the child’s half-brother]. The certified photocopy of the Medicare card and driver's licence in the name of [the child] shows that from 20 April 2018 – and earlier given the time needed to process applications for both – [the child] was responsible for his own health care and transport. Given [the child] was working away from his home for three weeks out of every four, any costs incurred by [the Other Party] would have been minimal. There is no evidence to indicate [the Other Party] was providing financial support for [the child] during the period in question. As [the child] was working it is very likely he would have been supporting himself and making his own life decisions.
26. On balance, given the evidence provided, the Tribunal is satisfied that [the Other Party] was no longer providing care for [the child] from 29 December 2017.
The Tribunal agrees, and finds, that the Other Party was no longer providing actual care for the child from 29 December 2017.
This means that the Existing Care Determination must be revoked because there is a change to the cost percentage, being the percentage of a child’s cost the parent meets directly through care (s 54F in subdivision C of Division 4 of Part 5 of the Assessment Act).
Section 49 of the Assessment Act provides for the determination of a percentage of care where the responsible person (in this case the Other Party) has no pattern of care for the child during the care period:
(1)This section applies if:
(a)either of the following applies:
(i)     an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;
(ii)    a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;
and the Registrar is satisfied that a responsible person for the child 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; or
(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.
Consequently, the Tribunal finds that from 29 December 2017, the Other Party had 0% care of the child and the Applicant had 0% care of the child.
Section 54F(2) sets out when the revocation of the determination will take effect:
(2)The revocation of the determination takes effect at the end of:
(a)if the Registrar or the Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(c) within 28 days after the change of care day for the responsible person:
(i) in a case where that change of care day occurs during the interim period for the determination—the day on which the interim period ends; or
(ii) otherwise—the day before that change of care day; or
(b)if the Registrar or the Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person but before the interim period for the determination has ended—the day on which the interim period ends; or
(c)otherwise—the day before the day on which the Registrar or the Secretary is notified, or otherwise becomes aware, of that matter.
The change of care day was 29 December 2017. If the Registrar was notified of the change of care within 28 days of that time, the revocation of the determination would take effect from 28 December 2017.
However, the Tribunal finds that the Registrar was first notified of the change of care on

30 May 2018, being more than 28 days after the change of care day. The telephone conversation on 23 May 2018 was not definitive. That is, the Applicant’s Representative stated that the child was “possibly” not living with the Other Party and that she was “not sure” if the child was still at the Other Party’s house. The file note recorded that “[N]o care change taken as rep not sure” (T24).
However, on 30 May 2018, the Applicant’s Representative confirmed with the Department that it was the Applicant’s belief that the child was no longer living with the Other Party and possibly had not been for some time.
Therefore, the Tribunal finds that the Registrar was notified of the change of care on

30 May 2018, and that the revocation of the determination should take effect from

29 May 2018. That is, the Applicant provided 0% care of the child and the Other Party provided 0% care of the child commencing on 30 May 2018.
As the Tribunal has effectively allowed the 23 November 2018 objection, in part by substituting a new date of effect of 30 May 2018 (instead of the date of 26 June 2018 as determined by the review officer), the Tribunal must determine the date of effect pursuant to s 87AA of the Registration and Collection Act and s 43(6) of the AAT Act.
Section 87AA of the Registration and Collection Act provides, in part, 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 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.
Section 87AA(1) of the Registration and Collection Act necessarily interacts with s 43(6) of the AAT Act. Section 43(6) effectively provides that the decision of the Tribunal is deemed to be a decision of the person who made the Reviewable Decision and gives the Tribunal discretion to backdate the effect of that deemed decision. Section 43(6) of the AAT Act provides:
Tribunal’s decision taken to be decision of decision‑maker
(6)A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.
Paragraph [4.1.8] of the Guide provides the following guidance about special circumstances:
Objection decision to apply from an earlier date
The care percentage objection decision may have effect from an earlier day if the Registrar is satisfied that there are special circumstances that prevented the person from lodging their objection within the required timeframe (section 87AA(2)). The Registrar must first be satisfied that special circumstances exist, and then the Registrar has discretion as to whether to extend the period in which to lodge the objection, in order for the objection decision to have effect from the earlier date.
Special circumstances
In considering special circumstances the Registrar will look at the particular circumstances of the applicant. The applicant must show that their particular circumstances prevented them from lodging an objection within the required timeframe. They must explain why there was a delay in lodging the objection and that the circumstances are sufficiently special for the applicant to receive the benefit of an extension to the period in which to lodge an objection, in order for the objection decision to have effect from an earlier date. Some examples of special circumstances may include:
·the parent was seriously ill or had an accident that stopped them from lodging an objection
·the parent suffered a personal trauma such as a death in the family or a natural disaster that caused damage to the parent's property
·the parent had communication difficulties, including isolation, illiteracy or poor English-language skills
·the parent reasonably relied upon inaccurate or misleading information.
If the Registrar is satisfied that special circumstances exist, the Registrar will then consider whether it is appropriate to exercise the discretion to extend the period in which to lodge the objection (section 87AA(2)). The Registrar will consider if:
·the decision to extend the period in which to lodge the objection will prejudice the other parent. For example, will the extension that results in an earlier date of effect for the objection decision create a significant overpayment or significant arrears of child support?
·the applicant rested on their rights. For example, did the applicant make any efforts to lodge the objection earlier, communicate to Services Australia that the decision was being contested or raised their concerns in other ways - example.g. a complaint to [the Department of Human Services] or the Ombudsman?
If the Registrar makes a determination under section 87AA(2) to extend the period in which to lodge the objection, then the objection is considered to have been received within the prescribed timeframe. The objection decision will then replace the original care percentage decision from the first day that original decision had effect.
…
The Applicant initially lodged his objection to the 10 August 2018 determination on

20 August 2018, and on that basis his Representative argued that it was within the 28-day time period. However, as outlined above, the Applicant withdrew his objection on

18 October 2018 after receiving advice from the Department that the objection would not change the current arrears he owed. This effectively meant that there was no longer an objection on foot because it had been withdrawn. This is confirmed by the contemporaneous records, including the record of the telephone conversation with the Applicant himself on

18 October 2018, and the letter dated 23 October 2018 confirming the withdrawal of his objection (see paragraph [25] above). However, the Tribunal finds that despite the Applicant’s Representative seeking to continue the objection, it could not be continued or revived because it had been validly withdrawn on 18 October 2018.
As the contemporaneous records indicate, it was not until 23 November 2018 that the Applicant lodged another objection to the 10 August 2018 decision. This meant that the Applicant did not lodge his objection within 28 days. This further means that the date of effect, applying s 87AA(1), is the date the Applicant lodged his objection, being 23 November 2018.
However, if there are special circumstances that prevented the Applicant from lodging his objection within the 28-day period, the Tribunal may determine that s 87AA(1) does not apply, and that the date of effect is the date that is consistent with the new care determination made by this Tribunal, being 30 May 2018.

With respect to special circumstances, in supporting documentation submitted to the Tribunal, the Applicant stated that he did not notify the Department of the change in care within 28 days of the change in care of 29 December 2017 because he was not aware of the deadline and did not want to prejudice his new relationship with his son or encourage further estrangement of the child from his mother (see supporting document in Exhibit A2). However, this submission relates to the date of notification, and not the date of the objection which s 87AA is concerned with. Section 54F of the Assessment Act concerns the date of notification and does not provide for special circumstances.
However, with respect to special circumstances and the timing of the objection made on

23 November 2018, the Applicant’s Representative submitted that he did not rest on his rights, and that he always acted under the advice of the Department. More specifically, the Applicant and his Representative referred to an internal error made by the Department which the Applicant submitted that he had no responsibility for. The submission was that this internal error had to be resolved before his objection, which the Applicant argues was made on 20 August 2018, could finally progress (see supporting document in Exhibit A2).
The Department’s advice to the Applicant dated 18 October 2018 (that an objection would not change the current arrears he owed) was correct. Subsequently, the Applicant’s Representative was informed on 22 October 2018 that the 10 August 2018 determination may be invalid which resulted in the Department obtaining internal policy advice. The initial policy advice of 30 October 2018 that the 10 August 2018 determination was invalid, was subsequently found by the Department to be incorrect on 15 November 2018.
In the interim, the Applicant, following advice from the Department, had attempted to lodge a change of assessment form on 5 November 2018 which was not accepted because the case had now ended. It was only on 15 November 2018 that the Applicant was advised by the Department that he needed to lodge a new objection, which he did on

23 November 2018.
In summary, the Tribunal finds that the Applicant was given inaccurate or misleading information by the Department after the expiry of the 28-day period, which did not prevent him from lodging his objection within the 28-day period. Indeed, he did lodge his initial objection application within this period on 20 August 2018. However, the Applicant validly withdrew this objection following correct advice being given by the Department that the objection could not not alter the payment of the arrears he owed. Thus, although the Applicant was subsequently given inconsistent and misleading information from

22 October 2018, which the Tribunal appreciates must have been confusing and frustrating, this occurred well after the 28-day period and therefore he was not prevented from lodging his objection within the 28-day period by being given misleading information by the Department. Consequently, there were no special circumstances that would allow the Tribunal to make a determination under s 87AA(2) to extend the period in which the Applicant could lodge the objection.
In order to give effect to the operation of s 87AA(1), it is appropriate for the Tribunal to determine, in accordance with s 43(6) of the AAT Act, that the date of effect is 23 November 2018, being the date that the Applicant lodged his objection.
CONCLUSION
In summary, and for the reasons outlined above, the Tribunal has made the following findings regarding the issues before it:
(a)Issue 1 and Issue 2: There was a change in care on 29 December 2017 which was notified to the Department on 30 May 2018. Therefore, the Existing Care Determination should be revoked on 29 May 2018 and a new determination should be made.
(b)Issue 3: The percentage of care under the new determination is 0% care of the child to the Applicant and 0% to the Other Party to commence on 30 May 2018.
(c)Issue 4: The date of effect of the new determination is 23 November 2018.
DECISION
For the reasons outlined above, the Reviewable Decision, being the AAT1 decision dated 19 June 2019, is varied as follows:
(a)the date of “15 June 2018” is deleted and substituted with the date of “30 May 2018”. That is, the Applicant provided 0% care and the Other Party provided 0% care of the child commencing on 30 May 2018; and
(b)in accordance with s 43(6) of the AAT Act the date of effect of the Tribunal’s decision is 23 November 2018.

I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

.... [Sgd]...................................................................
Associate
Dated: 9 November 2020

Date of hearing: 18 June 2020

Applicant: In person, assisted by his mother

Representative for the Respondent: Mr K Defranciscis

Other Party:

No appearance

[2020] AATA 4481

9 November 2020

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies

Date of hearing:	18 June 2020
Applicant:	In person, assisted by his mother
Representative for the Respondent:	Mr K Defranciscis
Other Party:	No appearance