CONSIDERATION RELATING TO THE FIRST CARE PERCENTAGE DETERMINATION
78 The Court must not construe an administrative decision maker's decision record "with an eye keenly attuned to the perception of error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). Having said that, the decision record for the second review decision is regrettably brief and it does not do some important things.
79 The decision record does not identify the particular provisions of the Assessment Act or the Registration and Collection Act under which the decision was made. Indeed, since there is no express reference to a "change of care day", it is not clear what version of the Assessment Act was thought to be relevant to the second review decision. Since there was no written parenting plan and there is no evidence that there was an "interim period" or a suspension of a determination, I will rely on the version of the Assessment Act on which the Registrar has relied on in its submissions since I understand that amendments subsequently made will have no impact on the assessment of the correctness of the second review decision.
80 The Tribunal's decision record does not refer expressly to important concepts or facts such as:
(a) As mentioned, it does not identify the "change of care day" as such; or
(b) It does not identify whether it revoked the July 2018 determination under s 54F or s 54H the Assessment Act;
(c) It does not identify as such what the "existing percentage of care" was for the purposes of s 54F(1)(a), or when the Registrar was notified or otherwise became aware that the actual care of the children did not correspond with the "existing percentage of care" for the purposes of s 54F(1)(c);
(d) The possible impact of a change in the "percentage of care" on a "cost percentage" for the purposes of s 54F(1)(d);
(e) The Tribunal did not mention the April 2017 determination; and
(f) Although the Tribunal referred to the historical facts of the July 2018 determination and the objection decision and the care percentages determined in the July 2018 determination and the objection decision (at D[2] and [3]), the Tribunal did not record the "change of care day" (being 1 April 2017) or the effective date (being 6 July 2018) for the July 2018 determination and the objection decision.
81 There is also no reference to the facts on the basis of which the Registrar's delegate made the July 2018 determination or the evidence on the basis of which the objections officer made the objection decision. They were summarised in the Details of Objection Decision which was in the documents provided to the Tribunal (see [35] above). Importantly, the decision record did not reveal the following information from the Details of Objection Decision:
(a) On 6 July 2018, the father advised that he had been having the children for three nights per week since April 2017 and the "event" was "keyed" as 1 April 2017. This indicates that 6 July 2018 was not the "change of care day" for the July 2018 determination but rather the day that the claimed change was notified to the Registrar and (since that was more than 28 days after the claimed change of care day) it was the effective date of the determination;
(b) On 23 July 2018, and relevant to the objection decision, the father said that before 6 July 2017, the children would have been in his care for two nights per week until he moved into his own place. There was a period of about 2.5 weeks where he was at friend's place until his new accommodation was ready and he did not have the children then. However he said that, from 6 July 2017, he had the children three nights per week;
(c) The objections officer found that there was a point of agreement between father and mother that for the period from 1 April to 6 July 2017, the father had the children two nights per week and the father did not provide promised evidence concerning the claimed three nights per week from 6 July 2017;
(d) In the absence of evidence from the father to support his claim for the period from 6 July 2017, the objections officer decided, on 5 September 2018, to reflect the percentages of care as being 261 nights or 72% (mother) and 104 nights or 28% (father) and that the "change of care" day remained 1 April 2017;
(e) The objections officer noted that, before a new care determination could be made, the previous determination must be revoked. The objections officer made the decision to revoke the July 2018 determination under s 54H of the Assessment Act on the basis that the father's existing percentage of care (as found in the April 2017 determination) would, following the revocation of the July 2018 determination and the making of a new determination under s 50, change by 1% to 28%. That change in the percentage of his care would have no impact on the father's (or the mother's) "cost percentage"; and
(f) The objections officer found that the effective date of the objection decision was 6 July 2018. I understand that to be because that was the day when the Registrar received notification that actual care did not correspond with the existing percentage of care for the purposes of s 54H(1)(c) of the Assessment Act. As the notification was made more than 28 days after the change of care day, the July 2018 determination ceased to have effect on 5 July 2018 under s 54H(2)(c).
82 Although the Tribunal member gave reasons at D[12] for why it was satisfied that the father and mother had care percentages of 40% and 60% respectively for the "care period" between 1 November 2018 and 31 October 2019, the Tribunal did not (at D[13]) say why it was satisfied that the respondents had the 40:60 percentages of care "from at least the date of the Original Determination", being 6 July 2018, "until recently". The language I have quoted is ambiguous as to what the "care period" was that the Tribunal actually applied for the purposes of the legislation and whether it made a finding of the "change of care day".
83 The Tribunal expressly used the term "care period" with reference to a 12 month period from 1 November 2018 to 31 October 2019 at D[11]-[13]. At D[11], the Tribunal member stated that she was making her assessment with respect to "a 12-month "care period" as referred to in the legislation" (emphasis in the original). Those facts lend some force to the Registrar's submissions that that was the "care period" considered by the Tribunal.
84 I do regard the language of D[11]-[13] as unfortunate. There is no 12 month "care period" referred to in the legislation - a reading of the decision record of the AAT first review at [14] would suggest that that 12 month period derives from administrative guidance. Even though s 50 of the Assessment Act confers a discretion on the Tribunal member as to the "care period" it adopts, consideration of a "care period" which starts to run from the "change of care day" and for so long as necessary is consistent with both the scheme of ss 50 and 54F and the guidance given by the Child Support Registrar in its Child Support Guide as discussed below.
85 Recognising that the first review decision was not the subject of the second review decision, it is useful to note the more transparent (and, with respect, the more appropriate) approach to the issues to which ss 50 and 54F of the Assessment Act give rise which was adopted in the decision record for the first review decision at [11]-[17] (emphasis in the original):
11. Subsection 54F(1) of the Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person's existing care of the child or children.
12. In this case, the tribunal has determined that a care determination was made under section 50 of the Act from 7 March 2017 and that [the mother] had a percentage of care for [the children] of 72% and that [the father] had a percentage of care of 28%. Therefore, paragraph 54F(1)(a) of the Act is satisfied. [The father] contacted the Department on 6 July 2018 to advise that the care that was taking place for [the children] from 1 April 2017 did not correspond with the existing percentage of care as determined. Therefore, paragraph 54F(1)(c) of the Act is satisfied.
13. The Act also requires that there would be a change in the cost percentage if another percentage of care were determined for [the father] under section 50 of the Act. Section 50 of the Act provides that if the tribunal revokes a determination and is satisfied that a party has had, or is likely to have, a pattern of care of a child, the tribunal must determine the care during the care period. 'Actual care' may be worked out based on the number of nights the child was or will be in the care of the person (subsection 54A(1) of the Act).
14. The tribunal is required to consider what the actual care [the father] and [the mother] have had or are likely to have of [the children] during the care period. The care period is such a period as the Child Support Registrar considers to be appropriate having regard to all the circumstances (section 50 of the Act). The Department's policy in this regard, as set out in Chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed. This policy is not binding on the tribunal but the tribunal has determined that it is appropriate in this matter. In this case, the Department determined that the care period should start from 1 April 2017. However, [the father] did not contact the Department until 6 July 2018.
15. [The father's] submission to the tribunal was that [the children's] care changed from July 2017. In his initial evidence to the Department, it is recorded that the care changed in April 2017. He stated that from July 2017 he had three to four nights per week care of [the children]. He did not keep any records of the care but he thought that it was, on average, three nights per week. [The mother] disagreed and conceded that [the father] had two nights of care per week. [The mother] also did not keep any records of the care during the period.
16. The tribunal has determined that the care for [the father] and [the mother] should remain as determined by the Department and that a new determination of care should not be made. While there may have been changes to the care prior, the tribunal is not satisfied that this has resulted in a higher percentage of care than was being used by the Department. Furthermore, both [the father] and [the mother] did not present any evidence, apart from their respective oral evidence, that there had been a change in the care. Neither has maintained a diary on an ongoing basis of what care was occurring each week and there is no third-party evidence to support the care that was occurring. In the absence of evidence to substantiate that a change in the care has occurred or is occurring, the tribunal has difficulty accepting that a change has occurred and from when the change occurred.
17. Therefore, the tribunal is not satisfied that there has been a change in the care which constitutes a change to the pattern of care, as required under section 50 of the Act. Accordingly, the tribunal has decided not to revoke the existing care determination.
86 Having said that, the language used at D[13] which I have quoted at [82] above suggests that the Tribunal member accepted that the "change of care" day was 6 July 2018 and the Tribunal member stated that she was "satisfied" that the 40:60 percentage split applied from that date. That implies that the "care period" the Tribunal member actually used was from 6 July 2018, which it treated as the "change of care" day, until "more recently" which I understand to mean 2 June 2020. In my view it was open to the Tribunal to so find and ultimately to make the decision that it did.
87 It is true that the Details of Objection Decision indicates that on 23 July 2018, the father advised the Registrar that he commenced care of the children for three nights per week from 6 July 2017, not 1 April 2017. However, in the absence of records for the period between 6 July 2017 and 6 July 2018, it was open to the Tribunal not to accept that 6 July 2017 was the change of care day and to adopt 6 July 2018 as the change of care day because:
(a) 6 July 2018 was the day on which the Registrar was first notified of a change in the father's pattern of care. Since that date was more than 28 days after either 1 April 2017 or 6 July 2017, the effective date of any determination made by the Tribunal in the circumstances of this case could not be earlier than that date under s 54F(2) of the Assessment Act;
(b) There were no records of care which pre-dated 1 November 2018. Although the records of care before the Tribunal commenced four months after the father first notified the Registrar of the alleged change of the pattern of care, that was a relatively short period of time and the issue of the need for such records was first raised squarely in the first review decision dated 16 November 2018;
(c) The father was consistent in his claim made on 6 July 2018 that (at least from the 6 July 2017) he had a pattern of care of at least three nights per week. That claim was disclosed in the Details of Objection Decision which was before the Tribunal;
(d) The Tribunal found the father's records of care were more credible than the records of care provided by the mother for good reasons: flight records supported his record of having taken the children on holiday which was inconsistent with the mother's care records and the father's record keeping was more contemporaneous. In my view that supported an inference that, between 6 July 2018 and 1 November 2018, the same pattern of care applied as revealed by the care records, consistently with the father's claims;
(e) Although the Tribunal (appropriately) placed little weight on the supporting statements from the father's partner and mother for the reasons given at D[12], they were consistent with the father's claims and for the period from 6 July 2018 to "more recently" - that is, 2 June 2020; and
(f) There was nothing before the Tribunal that suggested that the pattern of care changed after 31 October 2019 and before 2 June 2020.
88 The Registrar also complained that the Tribunal member made no finding as to her satisfaction that the father's cost percentage would change if she were to make a determination under s 50 having regard to the requirement in s 54F(1)(d). Again, it is unfortunate that that issue is not addressed in the decision record expressly. However, I do not accept that that is a basis for concluding that it was not considered by the Tribunal member in light of the fact that the July 2018 determination was revoked which would suggest that the power to do so was considered. Unfortunately, as a matter of style, the Tribunal member did not refer to any sections of the Assessment Act or the Registration and Collection Act. Those Acts were only identified under the heading "Legislation" on the front page of the decision record.
89 Further, on any view, given that the change of care percentage adopted in the first care percentage determination was 40:60 percent, if any of the April 2017 determination (27:73 percent), the July 2018 determination (42:58 percent) or the objection decision (28:72 percent) is the benchmark, there would necessarily be a change in the father's (and also the mother's) cost percentage (see [15] above). If the Tribunal member did fail to address the issue, which I doubt, in light of the fact that there must have been a change in the cost percentage, the error cannot have been material and is therefore not jurisdictional in nature: see Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123.
90 In my view, and contrary to the Registrar's submissions, for reasons given in the preceding paragraphs, there was material before the Tribunal to support the Tribunal's finding with respect to the period between 6 July 2018 and 1 November 2018. Further, contrary to the Registrar's submissions, I do not accept that it was "pure speculation" for the Tribunal to consider that the father's percentage of care continued to be the same between 31 October 2019 to 2 June 2020 in the circumstance where the only relevant change brought to the Tribunal's attention was a new parenting arrangement to take effect from 3 June 2020. I also take into account the evidence given by the father's current partner at [71] and the following evidence that specifically related to a period from June 2019 in which she resided with him. She said in her statement:
I can say with utmost certainty that since [the father] has lived with me (early June 2019) that not a week has passed where the boys have stayed any less than three nights a week. For a period of time when [the father] was not working as much (during the 'off-season') [the children] were with us sometimes four nights a week. I can be confident of this, because the noise that three young children and two dogs make, means I cherish the little quiet time I have. And it is not very often at all.
91 I am not satisfied that the first care percentage determination reveals either a misapplication or misconstruction of ss 50 and 54F of the Assessment Act or that it was illogical or it lacked connection to the evidence or that it was made in the absence of evidence. I am not satisfied that any of the first, second or third grounds have been made out.