Confidential One and Confidential Two (Party Joined) and Child Support Registrar [2011] AATA 549 (11 August 2011)

Last Updated: 11 August 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 549

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2011/1257

GENERAL ADMINISTRATIVE DIVISION		)
	Re		CONFIDENTIAL ONE

Applicant
CONFIDENTIAL TWO

And Party Joined

And

CHILD SUPPORT REGISTRAR

Respondent

DECISION

Tribunal

Ms G Ettinger, Senior Member

Date 11 August 2011

Place Sydney

Decision

The Tribunal affirms the decision under review.

...............[sgd]...............................
Ms G Ettinger
Senior Member

It is noted that publication of this decision is approved by the Administrative Appeals Tribunal pursuant to section 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).

CATCHWORDS

CHILD SUPPORT REGISTRAR – decision regarding when notification of a change in care took place – discussion of tests for application of sections 54F or 54G of the Child Support (Assessment) Act 1989 – decision under review affirmed.

Child Support (Assessment) Act 1989 ss 49, 54F, 54G, 150A

Child Support (Registration and Collection) Act 1988 s 80, 103VA

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

REASONS FOR DECISION

11 August 2011 SUMMARY

Ms G Ettinger, Senior Member

1. Confidential One (the Applicant), appeals to this Tribunal against the decision of the Child Support Registrar (the Registrar), as affirmed by the Social Security Appeals Tribunal (the SSAT), which held that the date for accepting a change in the Applicant’s care of his children commenced on 8 September 2010, and not 26 May 2010.
2. Having heard the evidence of Confidential One, the father of the two children of his marriage with Confidential Two, Confidential Two’s evidence, and the Registrar, and having considered the legislation, and the relevant sections of the Child Support Agency: The Guide, CSA’s online law and policy guide for the new Scheme, I have decided to affirm the decision of the Registrar, the Respondent in these proceedings, and the SSAT. My reasons follow.

ISSUES BEFORE THE TRIBUNAL

3. The issues which I have to decide are:
   • whether the Applicant gave the requisite notice of a change in care which he says occurred on 26 May 2010;
   • whether the date of notification of the change in care can be backdated to the date claimed by the Applicant.

BACKGROUND

4. The Applicant and Confidential Two are the parents of two children, born in 2004 and 2006. The parents, who were married in 2002, separated in 2009. Confidential Two has had child support obligations in respect of the children since 6 March 2009. By arrangement with the Tribunal, both parents gave evidence by telephone. Ms E Bell, senior lawyer of DHS Legal Services Division, attended the hearing in person on behalf of the Registrar.
5. I noted that on 21 May 2010, the Applicant and Confidential Two entered into Consent Orders in the Federal Magistrates Court in which the parties agreed that the Applicant would have 72% care of the children and Confidential Two, 28% care of the children for child support purposes. The Consent Orders provided for equal shared parental responsibility to the parents, and provided that the children live with their father. It included specific and detailed access times for the children’s mother.
6. The parties agreed that they did not give effect to the Consent Orders. Confidential Two told me that she signed the Consent Orders because she was tired of conflict with Confidential One, and that she felt he was controlling her. She said that she accordingly moved from their home in Wollongong to Brisbane towards the end of May 2010, perhaps on 21 May. She also said that she wanted the hurt to end, and was worried about the effect of the court proceedings on the children.
7. As to notification of a change in care arrangements; there is agreement between Confidential One and the Registrar, that he contacted the Child Support Agency, (the CSA), on 16 June 2010 by telephone to discuss a change of assessment application based on income. Confidential One said he mentioned to the person to whom he spoke at the CSA that Confidential Two had not had any contact with their children for some weeks. The notes made by the officer with whom Confidential One spoke record that conversation in the T-documents at T28. Those notes also indicate that he (the officer), advised Confidential One to contact the CSA general enquiry line regarding that issue as it could impact on the child support payable.
8. Confidential One was concerned that the file note at T28 purportedly recording the conversation of 16 June 2010 had been written by a contractor, and not by a CSA officer; further, that it was a summary of his half hour phone call with the officer, and not a correct or contemporaneously made record. Ms Bell who represented the Registrar, was unable to provide me with any information about the document. I note however, from the T-documents that the conversation was not recorded.
9. Confidential One did not deny that he was directed during his phone call of 16 June 2010 by the call centre person/contractor/officer to contact the general enquiry line. He told me that he did not do so because he was not sure at the time how permanent Confidential Two’s departure was. He told me that she had previously disappeared on four or five occasions, and in March (2010), had been gone for a month. This was disputed by Confidential Two who said that she might have taken a weekend off, but had not disappeared as such.
10. It is undisputed that Confidential One did not contact the CSA again until 8 September 2010 (T27), when he felt he was certain Confidential Two had relocated to Queensland. He told me that when he first contacted CSA on 16 June 2010, he did not know, and was not informed about the possibility of having an Interim Order made, and hence did not contact the CSA again until 8 September 2010. As a result of that contact by Confidential One, a delegate of the Registrar decided on 13 September 2010 that the Applicant had 100% care of the children from 8 September 2010, being the date the Applicant notified CSA of the change in care. This decision was made pursuant to section 54F of the Child Support (Assessment) Act 1989 (the Assessment Act).
11. Confidential One objected to the decision on 30 September 2010, under section 80 of the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act), on the grounds that he notified the CSA on 16 June 2010 that Confidential Two had not been spending time with the children since 26 May 2010, and that that should be the date of the change in care.
12. On 17 November 2010, a delegate of the Registrar disallowed the Applicant’s objection on the basis that the CSA was first notified of the change in care on 8 September 2010.
13. On 16 December 2010, the Applicant appealed to the SSAT, and on 1 March 2011, the SSAT affirmed the decision under review, finding that the date of effect of the change in care could not be backdated to 26 May 2010. Confidential One then exercised his rights to appeal to this Tribunal.

RELEVANT LEGISLATION AND POLICY

14. This Tribunal has jurisdiction to review the decision of the SSAT by virtue of section 103VA of the Registration and Collection Act, which came into effect on 1 July 2008.
15. For the sake of completeness I note that the Assessment Act, sets out the way in which percentage of care should be calculated. The Assessment Act was amended on 1 July 2010 by the Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010 which changed the method of calculating a percentage of care. I am mindful that the percentage of care given by Confidential One for his children is not in dispute here.
16. The Guide provides policy on how the legislative provisions of the Assessment Act and the Registration and Collection Act should be applied, including the changes made by the amending Acts. For the sake of completeness, I note that the Tribunal is obliged to apply CSA’s policy guidelines unless there are cogent reasons in a particular case for not so doing: (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
17. Either section 54G or section 54F of the Assessment Act, may apply. Where there is a change in care which results in a change to a parties’ cost percentage the applicable section is section 54F of the Assessment Act. Section 54F provides:

Subdivision C—Revocation of determination of percentage of care
54F Determination must be revoked if there is a change to the responsible person’s cost percentage
(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 Family Assistance Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place 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).
(2) The revocation of the determination takes effect at the end of:
(a) if the Registrar or the Family Assistance 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 Family Assistance 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 Family Assistance Secretary is notified, or otherwise becomes aware, of that matter.

18. However it appears that in Confidential One’s case, the Registrar’s delegate was satisfied that section 54G could not apply, as on the evidence available, the children were not made available to Confidential Two. As section 54G was held not apply, the relevant section to be applied was section 54F. Pursuant to section 54F, the Registrar had, in this case, to revoke the determination, and make a new determination because the percentage of care given by each parent had changed.
19. The Registrar contended that the change in care, whereby the Applicant now has 100% care has resulted in a change to the cost percentage for the children, thus enlivening the provisions in section 54F.

DOCUMENTS BEFORE THE TRIBUNAL

20. The documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as Exhibit R1.
21. In addition, shortly before the hearing, Confidential One lodged with the Tribunal, various documents including correspondence between the parties’ legal advisors relating to the dispute over the care arrangements for his and Confidential Two’s children. Confidential Two did not receive those documents before the hearing. As Confidential Two did not have access to a computer during the hearing, the adjournment I offered her to review the documents online would not have been of assistance.
22. Accordingly I decided, with the agreement of the parties, to proceed with the hearing, mindful of the procedural fairness issues involved. I offered to adjourn the hearing and reconvene if necessary.
23. Relevantly I took into evidence as Exhibit A1, a printout of various text messages from Confidential Two to Confidential One dated from 8 June 2010 to 9 June 2011. Where Confidential One referred to a message in his evidence, I required him to read out the full message to the hearing and onto the transcript.
24. I also took into evidence as Exhibit A2, dot point two of an email from Confidential One to his legal advisor dated 13 June 2010. Dot point two read as follows:

I asked [Confidential Two] if she intended to see the children anymore – [Confidential Two] would not state when and if she would be coming back any time soon just that she was having some “time out” and that “she still wants holiday and Christmas time with the children”.

25. Although Confidential Two told me at the conclusion of the hearing that she did not require any time to make further comment, I adjourned and provided the parties seven days if they wished to make further comment on Exhibits A1 and A2. No party responded within that period, or at all, and I consequently reserved the decision on 28 July 2011.

THE TRIBUNAL’S CONCLUSIONS

26. I have already noted above that the Applicant and Confidential Two, the two parents involved in this matter signed Consent Orders with regard to the shared care of their two children on 21 May 2010. The Consent Orders stipulated that the children live with the Applicant. Confidential Two was to spend time with the children each alternate weekend from Friday night to Sunday night, and each Tuesday night, as well as extra time during school holidays, amounting to a care percentage of 28%.
27. Confidential Two told me that by May 2010 she felt she needed to get away, as Confidential One manipulates her, and that it was not in the children’s interest that she remain in Wollongong. She moved to Brisbane in May 2010, shortly after the Consent Orders were made. It is not in dispute, and I accept the evidence of both parents that the Consent Orders were not complied with, and that Confidential Two left Wollongong to live in Brisbane in the latter half of May 2010, possibly on 21 May. Confidential Two told me that she changed her telephone number a few times in order to avoid harassing calls from Confidential One.
28. The evidence before me of each party indicated that each considered the other had not complied in regard to access. The Applicant told me that he had concerns regarding Confidential Two’s mental health, and the safety of the children. In refuting that, Confidential Two accepted that she had been taking anti-depressants from August 2009 until January 2011 under medical supervision, but that she able to look after the children and was mindful of their needs, in particular those of their daughter who suffers medical problems. Confidential Two presently has supervised access with Confidential One’s mother, and no overnight access. Confidential Two told me that she would like overnight access with the children, and asked Confidential One at the hearing if he would agree to that, which he refused. Confidential Two told me that one of the reasons she did not come to a birthday party was that she would only have been permitted by Confidential One to have the children in the company of the other participants at the party, and not privately or overnight.
29. I am satisfied from the evidence that Confidential One has restricted Confidential Two in regard to access of the children because of the concerns he has expressed. He has also restricted Confidential Two’s telephone access to the children from the three nights per week agreed upon in the Consent Orders, to one night a week. Confidential Two confirmed that telephone contact from Brisbane would be feasible if Confidential One permitted it. On the other hand, because Confidential Two has moved away to Brisbane, it would be geographically impractical to comply with the Consent Orders in regard to person to person contact, because Confidential Two would not be able to travel to Wollongong each week to see the children.
30. I am mindful that pursuant to section 54G of the Assessment Act, in a case such as this, an existing care determination can be revoked where there has been less than regular care. Pursuant to that section the date of effect of a new care decision can be backdated to the date of change in care. However, section 54G only applies where the parent with more care, e.g. Confidential One, has been making the children available to the parent with a lesser percentage of care, Confidential Two. I am satisfied from the evidence that notwithstanding Confidential Two has moved away to Brisbane and is thus not adhering to the terms of the Consent Orders, Confidential One has not been making the children available to her by telephone as agreed, or indeed in person, when she has asked. Therefore section 54G of the Assessment Act does not apply, and section 54F of the Assessment Act comes into play.
31. In regard to notification of change of care, I accept from document T28, and Confidential One’s evidence that he contacted the CSA on 16 June 2010 by telephone. During that call he advised that Confidential Two had not had any contact with the children for some weeks previously.
32. I am satisfied from the evidence at T28, and that of Confidential One, that he was advised to notify the CSA general enquiry line about this change. The Applicant’s evidence in that regard was that he had rung the CSA as he knew he should, to advise change of care, but did not understand that he needed to contact anyone else. He says that he was told to ring back when the situation regarding Confidential Two was clearer, as at the time, he was not sure if the move by Confidential Two was permanent. He says he also did not know that any Interim Orders reflecting a change of care could be made.
33. I am mindful that pursuant to section 150A of the Assessment Act, the CSA may specify how notice of a change in circumstances is provided. The Applicant was advised he needed to speak with the general enquiries area of CSA about the change in care. He did not do so, until 8 September 2010 for the reasons he gave.
34. On 8 September 2010 the Applicant properly notified the CSA that the care of the children was not occurring in accordance with the Family Court’s orders dated 21 May 2010. He was advised that care could not be backdated as the change in care occurred more than 28 days before his notification to CSA.
35. The Registrar contends that the change in care, whereby the Applicant now has 100% care has resulted in a change to the cost percentage for the children, and thus the provisions in section 54F of the Assessment Act, are enlivened.
36. Under section 54F(2)(c), the date that the care determination is revoked is the end of the day before the change in care is notified to the CSA. The Registrar must then immediately make a new determination in care under section 49. The CSA policy in The Guide at 2.2.3 on this point states that:

Date of effect of a care change
If CSA is notified or otherwise becomes aware of a change of care within 28 days of the change, the assessment will be amended using the new percentage of care from the date the change of care occurred (section 74A(e) of the unamended Act, subsection 54F(2) of the amended Act).
If CSA is not notified, or does not become aware, within 28 days, the assessment will generally be amended using the new care percentage from the date CSA was notified of the care change (section 74A(f) of the unamended Act, subsection 54F(2) of the amended Act).

37. I am satisfied that notwithstanding the Applicant’s telephone call to the CSA on 16 June 2010, in applying the provisions of the legislation, I accept that the Agency first became aware of the change in care of his children on 8 September 2010. That is more than 28 days from the date of the change of care which occurred in May 2010. Thus the new care determination cannot be backdated, and must commence from 8 September 2010 which was the date of notification.
38. Accordingly Confidential One’s claim must fail, and the date of change in care for the children remain, as decided by the Registrar and the SSAT, to be 8 September 2010.

DECISION

39. The Tribunal affirms the decision under review.

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

Signed: ...............[sgd].................................................................

Associate

Date of Hearing 20 July 2011; reserved 28 July 2011

Date of Decision 11 August 2011

The Applicant Confidential One, Self represented

Party Joined Confidential Two, Self Represented

Solicitor for the Respondent Ms E Bell, DHS Legal Services Division