ZJSZ and Child Support Registrar (Child support second review) - [2017] AATA 1565

ZJSZ and Child Support Registrar (Child support second review) [2017] AATA 1565 (25 September 2017)
Division:GENERAL DIVISION
File Number(s): 2017/4346
Re:ZJSZ
APPLICANT

AndChild Support Registrar
RESPONDENT

AndGBLP

DECISION
Tribunal:Egon Fice, Senior Member
Date:25 September 2017
Place:Melbourne

The Tribunal has jurisdiction to review the decision of the AAT 1 made on 13 July 2017.
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Egon Fice, Senior Member
CHILD SUPPORT – second review of SSCSD decision – care percentage determination – revocation of existing determination – jurisdiction to review decision of SSCSD
Legislation
Administrative Appeals Tribunal Act 1975
Child Support (Assessment) Act 1989
Child Support (Registration and Collection Act) 1988
Secondary Materials
The Shorter Oxford English Dictionary
REASONS FOR DECISION
Egon Fice, Senior Member
25 September 2017

There has been an ongoing dispute between the applicant and other party regarding the care percentages determined in respect of their child. As at 11 October 2016 the percentages of care were 62% to the applicant and 38% to the other party. On that day the applicant informed the Department of Human Services (Department) that the percentage of actual care taking place had changed and that the other party had not provided overnight care of the child since March 2016.
On 21 December 2016 the Department decided not to revoke the care percentages after contacting the other party, who denied that the actual care being provided had changed. On 29 December 2016 the applicant lodged an objection with the Child Support Registrar (Registrar) claiming she provided 80% to 90% of the care of the child.
On 22 February 2017 the General Manager, Child Support Smart Centres, determined not to alter the existing care percentages. As a consequence, she stated that the existing care determination could not be revoked.
On 14 March 2017 the applicant lodged an application with the Administrative Appeals Tribunal, Social Services & Child Support Division (AAT 1) seeking review of the Registrar’s decision disallowing the applicant’s objection. AAT 1 handed down its decision on 13 July 2017, affirming the objection decision. The applicant then lodged an application with the Administrative Appeals Tribunal, General and Other Divisions (AAT 2) on 23 July 2017 seeking review of the AAT 1 decision.
Following lodgement of the application with AAT 2, the Registrar notified the Tribunal that it had formed the view that the decision made by AAT 1 could not be reviewed by this Tribunal as it did not have the jurisdiction to do so.
CLAIMED LACK OF JURISDICTION
The Child Support (Registration and Collection) Act 1988 (the Registration Act) provides for an application to be made to the Tribunal on a second review. Section 96A provides:
An application may be made to the AAT for review (AAT second review) of the following decisions of the AAT:
(a)a decision under section 92 to refuse an extension application;
(b)a decision under subsection 43(1) of the AAT Act on AAT first review of a care percentage decision;
(c)a decision under subsection 95N(2) to make, or not to make, a determination.
The expression care percentage decision is defined in s. 4 of the Registration Act in the following way:
care percentage decision means a decision as to the particulars of an administrative assessment, or as to the particulars of a notional assessment, to the extent that the decision involves (wholly or partly):
(a)a determination of a person’s percentage of care for a child that was made under a provision of Subdivision B of Division 4 of Part 5 of the Assessment Act; or
(b)a determination relating to a person that has effect, under section 54K of that Act, as if it were a determination made under such provision.
The expression percentage of care is also a defined term found in s. 5 of the Child Support (Assessment) Act 1989 (the Assessment Act). It states:
percentage of care, in relation to a responsible person for a child, means the responsible person’s percentage of care for the child that is determined by the Registrar under Subdivision B of Division 4 of Part 5.
Determination of the percentage of care is dealt with under Division 4 of the Assessment Act. In this case, it appears that a determination was made under s. 50 of the Assessment Act. Section 50 applies where a parent who has a relevant dependent child makes an application under s. 25 or 25A for a parent to be assessed in respect of the costs of the child, or the Registrar revokes an existing determination regarding a person’s percentage of care for a child. As will become apparent presently, there cannot exist, for any particular period of time, two determinations made regarding the percentage of care to be attributed to each parent or person who is not a parent, but is a carer of the child. Relevantly,

s. 50(1) provides:
(1) This section applies if:
(a)… ; 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 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.
In other words, if an existing determination is revoked, the Registrar must determine a new percentage of care. The converse must also be true. If the Registrar makes a new determination regarding the percentage of care, the previous determination must be revoked. That is set out in Subdivision C and in particular s. 54F which provides:
(1) If:
(a)a determination of a responsible person’s percentage of care (the existing percentage of care) for a child has been made under section 49 or 50; and
(b)if section 51 or 52 applied in relation to the responsible person – the interim period for the determination has ended; and
(c)the Registrar or the Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place and does not correspond with the responsible person’s existing percentage of care for the child; and
(d)the Registrar is satisfied that the responsible person’s cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person’s percentage of care for the child; and
(e)section 54G does not apply;
the Registrar must revoke the determination.
Note:The Registrar must make a new determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or

50(1)(b).
Ms B Lewis, a Senior Government Lawyer acting for the Registrar submitted that, taking account of the provisions I have referred to above:
Only if an existing determination is revoked under Subdivision C can a new “care percentage decision” be made under section 49 or section 50 in Subdivision B of Division 4 of Part 5 of the Assessment Act.
According to Ms Lewis, neither the original decision nor the objection decision were care percentage decisions within the definition found in s. 4 of the Registration Act. She submitted that rather, they were decisions made under Subdivision C of Division 4 of Part 5 of the Assessment Act not to revoke an existing care determination.
What Ms Lewis described as the original decision arose from an application made by the applicant after advising the Registrar that the levels of actual care taking place resulted in the applicant having 100% care of the child from 29 March 2016. The existing care percentage was 62% for the applicant and 38% for the other party. The other party disputed the level of care claimed by the applicant. The original decision was made on

21 December 2016 which found that neither the applicant nor the other party had substantiated their claims for 100% of the care. The decision-maker said the following about the effects of that decision:
As a result of rejecting the customer’s claim [the applicant’s claim] for a new care percentage decision, the customer roles and assessment amount [sic] will not change.
In other words, existing care percentages were to remain unaltered. That being the case, there was no need to revoke the existing determination. The applicant was dissatisfied with that decision and lodged an objection. The applicant was advised on 21 February 2017 that her objection had been disallowed. She then proceeded to lodge an application for review with AAT 1.
In the AAT 1 decision, Member Douglas, who heard the matter, described the following at paragraph 5 as the issue he was required to determine:
The issue the Tribunal must consider is whether the care of [the child] that has been taking place corresponds with the existing care percentages.
The claim before AAT 1 was plainly about the applicant’s claim to vary the care percentage decision which existed at the time of her claim. Had the care percentage been altered by any decision-maker in the chain of events, the decision-maker who altered the care percentage would necessarily have been bound to revoke the existing determination by reason of the application of s. 54F of the Assessment Act. Obviously, where the determination was that the care percentage should not be altered, no revocation decision was required or mandated.
The decision which the applicant now seeks to have reviewed by this Tribunal has not altered. It concerns the percentage of care which should be allocated to the applicant and the other party. Although Ms Lewis submitted that the decision of AAT 1 which the applicant sought to have reviewed was about revocation of an existing determination, it is simply not possible to make such a decision in isolation. Sections 54F and 50 are simply different sides of the same coin. They go together. In fact they are locked together. If the decision-maker decides to allocate a care percentage in respect of a child where an application has been made under s. 25 or 25A and no prior determination has been made, then the Registrar must determine the responsible person’s percentage care for the child during the care period. If there is an existing care percentage decision and the registrar revokes the existing determination under s. 54F, the Registrar must make a new determination under s. 50.
Section 54F simply compels the Registrar to revoke a determination of percentage of care where the Registrar is either notified or becomes aware that the care of the child actually taking place does not correspond with the existing percentage of care for the child. Should that occur, the registrar is also compelled to make a new determination of the percentage of care.
This Tribunal’s jurisdiction in this matter is determined by the application of s. 96A of the Registration Act and in particular subsection (b). In other words, the jurisdiction of AAT 2 is enlivened where AAT 1’s decision involved the review of a care percentage decision. Given what Member Douglas from AAT 1 said was the issue before him, it plainly involved the determination of a person’s percentage of care for a child made under Subdivision B of Division 4 of Part 5 of the Assessment Act. On reading the reasons for Member Douglas’ decision, it is abundantly clear that what he described as the issue was exactly what he was required to, and did, determine. The concluding passage of the reasons for decision states:
23. In the Tribunal’s view, based on what was known as at 21 December 2016, it could not be said that the pattern of care for [the child] for a care period of 12 months from 11 October 2016 would differ from the existing care percentages used for him. To say that another way, the evidence that the Tribunal has accepted or preferred in this case with respect to the care of [the child] over the period April to December 2016, does not substantiate and therefore does not allow the Tribunal to conclude that the care of [the child] that was actually taking place was such that his care for the period of 12 months from 11 October 2016 would, in all likelihood, differ from the extant care percentages for him.
With respect to Ms Lewis, I cannot accept her submission that this Tribunal does not have jurisdiction to review the decision of AAT 1 in this matter. AAT 1 was concerned solely with the care percentage decision with which the applicant was dissatisfied. The fact that AAT 1 and the decision-maker on the initial review of the decision did not amend the applicant’s percentage of care does not alter the very clear fact that both decisions were concerned with a review of a care percentage decision. The fact that there was no revocation decision is irrelevant. The purpose of revoking an existing determination is to ensure that there is no period of time during which two conflicting care percentage decisions are in existence. It also ensures that where an existing determination is revoked for the reasons set out in s. 54F of the Assessment Act, a new determination is made under s. 49 or s. 50 to replace the revoked determination. A 0% determination of the percentage of care may need to be applied.
Furthermore, the definition of the expression care percentage decision is clearly broad. It refers to a notional assessment as well as an actual assessment and it refers to the extent that the decision involves (wholly or partly) a determination of a person’s percentage of care for a child. The verb involve has the following relevant definition in The Shorter Oxford English Dictionary: …6. To include; to contain, imply; esp. to contain implicitly 1605. It seems that as long as the decision made has some relationship to a determination of a person’s percentage care for a child, whether wholly or partly, that decision is reviewable by AAT 2. There can be no reasonable basis for concluding that the determination of AAT 1 which the applicant seeks to have reviewed by this Tribunal did not involve a determination of a person’s percentage of care for a child.
I find that this Tribunal has jurisdiction to review the decision of AAT 1 made on 13 July 2017.

23. I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member

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Associate
Dated: 25 September 2017

Date of hearing: 04 September 2017

Applicant: By telephone

Advocate for the Respondent: Ms Belinda Lewis

Other party: By telephone

Date of hearing:	04 September 2017
Applicant:	By telephone
Advocate for the Respondent:	Ms Belinda Lewis
Other party:	By telephone