XWTH and Child Support Registrar (Child support second review) [2021] AATA 3240 (9 September 2021)

Division:	GENERAL DIVISION
File Number(s):	2020/7088
Re:	XWTH
	APPLICANT
And	Child Support Registrar
	RESPONDENT
And	WTYZ
	OTHER PARTY
Decision

Tribunal:	Senior Member A Poljak

Date:	9 September 2021
Place:	Sydney

The reviewable decision is set aside and in substitution I decide as follows:
(a)	The existing percentage of care determination should be revoked with effect for the other party from 1 February 2015; 
(b)	The existing percentage of care determination should be revoked with effect for the applicant from 6 August 2019; 
(c)	New percentage of care determinations be made to reflect that the other party has a percentage of care of the child of 0% and the applicant has a percentage of care of 100%; 
(d)	The new percentage of care decision applies with respect to the other party from 2 February 2015; and 
(e)	The new percentage of care decision applies with respect of the applicant from 7 August 2019.
..................................[sgd]......................................
Senior Member A Poljak

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.

Catchwords
CHILD SUPPORT – percentage of care determination – date of effect of the determination – whether date of effect is date of notification or date of change of care – legal question about which version of s 54F of the Child Support (Assessment) Act 1989 (Cth) applies – two sets of amendments – found that second amendments apply – reviewable decision set aside and substituted

Legislation
Child Support (Assessment) Act 1989 (Cth) s 54F 
Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018 (Cth) sch 1 

Cases
Commissioner of Police (NSW) v Eaton [2013] 252 CLR 1
ZBYM; Child Support Registrar and (Child support second review) [2021] AATA 1034

Secondary Materials
Child Support Guide – Version 4.57 – Released 1 July 2021 

REASONS FOR DECISION

Senior Member A Poljak

9 September 2021

1.	In May 2008, a child support case was registered with Services Australia (the Agency) in respect of a child of the applicant and the other party (the child).
2.	On 22 March 2011, the Federal Magistrates Court made orders concerning the care of the child. Based on those orders, and from 14 October 2011, the applicant was assessed by the Child Support Registrar (the Registrar) as having a percentage of care of 77% and the other party was assessed as having a percentage of care of 23%.
3.	On 7 August 2019, the applicant notified the Agency that she had had a percentage of care of 100% from 2 February 2015 (the new percentage of care arrangements).
4.	On 22 August 2019, the Agency determined that the new percentage of care arrangements applied to the other party from 2 February 2015 (i.e. the change of care day) and to the applicant from 7 August 2019 (the date of notification) (the original decision).
5.	On 22 August 2019, the other party lodged an objection to the original decision.
6.	On 18 October 2019, an objections officer upheld the original decision (the objection decision).
7.	On 4 November 2019, the other party made an application for review of the objection decision. 
8.	On 29 April 2020, the Social Services and Child Support Division of the Administrative Appeals Tribunal (SSCSD) set aside the objection decision. It revoked the existing percentage of care determinations. It made new determinations that the applicant had had a 100% percentage of care of the child and decided that the date of the new determinations was 7 August 2019 for the applicant and the other party (the reviewable decision).
9.	The applicant applied for review of the reviewable decision on 2 December 2020. As the application was filed out of time, an extension of time was granted on 21 December 2020. 
Issues
10.	Other than the reasons for the change in percentage of care arrangements for the child, the essential facts in this matter are undisputed. 
11.	The sole issue in these proceedings is whether the date of effect of the determination should be 7 August 2019 (i.e. the date of notification) or whether it should apply to the other party from 2 February 2015 (i.e. the change of care day) and to the applicant from the date of notification. This turns on a legal question about which version of s 54F of the Child Support (Assessment) Act 1989 (Cth) (the Act) applies.
Relevant Legislative Provisions
12.	At all relevant times there has been a version of s 54F of the Act which sets out the circumstances when the Registrar must revoke a determination of a person’s percentage of care. That provision has also, at all relevant times, identified when that revocation is to take effect. Section 54F of the Act has at all relevant times been contained in Subdivision C of Division 4 of Part 5.
13.	The provision in force immediately before 23 May 2018 (original provision) provided: 
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 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 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. 
14.	The Act was amended by the Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018 (Cth) (the Protecting Children Act).
15.	The first amendments to s 54F came into force from 23 May 2018 (first amendment). The amendments repealed and replaced s 54F (item 37 of Part 1 of Schedule 1 to the Protecting Children Act) and provided:
54F Determination must be revoked if there is a change to the responsible person’s cost percentage
(1) The Registrar must revoke a determination of a responsible person’s percentage of care (the existing percentage of care) for a child made under section 49 or 50 if:
(a) the Registrar or 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
(b) 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
(c) section 54G does not apply; and
(d) subsection (2) applies in relation to the individual.
Note: The Registrar must make another determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).
(2) This subsection applies in relation to a responsible person if:
(a) disregarding paragraph 53(1)(c), section 51 did not apply in relation to the responsible person; or
(b) section 51 did apply in relation to the responsible person but the maximum interim period for the determination has ended; or
(c) all of the following apply:
(i) section 51 did apply in relation to the responsible person;
(ii) the maximum interim period for an earlier determination of the responsible person’s percentage of care for the child has not ended;
(iii) an interim period does not currently apply in relation to the earlier determination;
(iv) the determination referred to in subsection (1) was made while the earlier determination was suspended under this Subdivision.
Note: For when section 51 does not apply, see section 53.
(3) The revocation of the determination takes effect at the end of:
(a) if the Registrar or Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(a) within 28 days after the change of care day for the responsible person—the day before the change of care day; or
(b) otherwise—the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter.
16.	A second tranche of amendments to s 54F came into force from 1 July 2018 (second amendment). The amendments repealed and replaced s 54F(3) (item 176 of Part 4 of Schedule 1 to the Protecting Children Act that came into effect on 1 July 2018) which provides:
54F Determination must be revoked if there is a change to the responsible person’s cost percentage 
…
(3) The revocation of the determination takes effect at the end of: 
(a) if the Registrar or Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(a) within 28 days after the change of care day for the responsible person—the day before the change of care day; or 
(b) if the Registrar or Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person and: 
(i) the responsible person’s care of the child has increased—the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter; or 
(ii) the responsible person’s care of the child has reduced—the day before the change of care day.
17.	Clause 183 of Part 4 of Schedule 1 to the Protecting Children Act provides as follows: 
183 Application—date of effect rules 
The amendments of the Child Support (Assessment) Act 1989 made by this Division apply in relation to: 
(a) changes of care days that occur on or after the day this item commences; and 
(b) changes of care days that occur before the day this item commences if the Registrar or Secretary is notified, or otherwise becomes aware, of the change of care more than 26 weeks after the day this item commences.
18.	As a matter of statutory construction, where a statute is amended, the statute and the amending statute are to be read together. There should also be a harmonious construction of legislature and amendments. This principle was described by Justice Gageler in Commissioner of Police (NSW) v Eaton [2013] 252 CLR 1 at [97]-[98] as follows: 
[97] One principle (reflecting an approach to legislative drafting of very long standing) is that the text of a statute is ordinarily to be read as speaking continuously in the present (113). A corollary of that principle is that, where a statute is amended, the statute and the amending statute are “to be read together as a combined statement of the will of the legislature” (114). Another principle (reflecting at root no more than a convention of language) is that the legal meaning of a statutory text ordinarily corresponds with the textual meaning most appropriate to its context (115).
“[98]…it is that statutory texts enacted by the same legislature are to be construed so far as possible to operate in harmony and not in conflict. That principle of harmonious construction applies to the construction of provisions within different statutes of the same legislature to create “a very strong presumption that the … legislature did not intend to contradict itself but intended that both … should operate”. The principle applies also to the construction of multiple provisions within a single statute to the effect that “[w]here conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.
19.	Clause 183 makes it plain that the second amendments apply to this proceeding. The overall purpose and intent of the amendments was to provide a single set of date of effect rules in relation to all changes of care notified more than 26 weeks after 1 July 2018, namely after 30 December 2018. This is consistent with the explanation of the purpose of item 183 of Part 4 of Schedule 1 to the Protecting Children Act in the Revised Explanatory Memorandum for the Act (at p 46): 
Item 183 provides that the amendments made by items 175 to 182 will apply in relation to changes of care days that occur on or after the day this item commences and changes of care days that occur before the day this item commences if the Registrar or Secretary is notified or otherwise becomes aware of the change of care more than 26 weeks after the day this item commences. 
This provides parents who have delayed in notifying a change of care with a transitional 'grace period' of 26 weeks from commencement to notify of the change of care before they become subject to the new care percentage date of effect rules. 
As a result, a parent who had reduced their care of a child before commencement but failed to notify of the change until more than 26 weeks later would have the reduced care percentage reflected in their child support assessment from the date of the care change. This could lead to a child support overpayment or arrears debt being raised against that parent in some cases. However, this is appropriate given the reduced care percentage is an accurate measure of the lower care costs incurred by that parent as the date of the care change, and the ability to notify within a timely manner, was within the parent's control.
20.	This is also reflected in the Child Support Guide – Version 4.57, released 1 July 2021, which provides at 2.2.2 on page 7:
The parties have an obligation to notify the Registrar of increases or decreases in care. If they fail to comply with that obligation, neither party should benefit from that failure. Where there is a delayed notification of a care change, an increased care percentage will only apply from date of notification.
21.	Additionally, the specific wording of clause 183 evinced a clear intent that it was to apply retrospectively. This is consistent with what Senior Member Furnell said in ZBYM; Child Support Registrar and (Child support second review) [2021] AATA 1034 at [56]-[58]. 
22.	For these reasons, the second amendment should apply in these proceedings, pursuant to clause 183(b) of the Protecting Children Act, as the Registrar or Secretary was only notified of changes to care days that occurred before 1 July 2018,  more than 26 weeks after 1 July 2018 (i.e. after 30 December 2018 on 7 August 2019 (the notification date)). 
Decision 
23.	The reviewable decision is set aside and in substitution I decide as follows:
(a)	The existing percentage of care determination should be revoked with effect for the other party from 1 February 2015; 
(b)	The existing percentage of care determination should be revoked with effect for the applicant from 6 August 2019; 
(c)	New percentage of care determinations be made to reflect that the other party has a percentage of care of the child of 0% and the applicant has a percentage of care of 100%; 
(d)	The new percentage of care decision applies with respect to the other party from 2 February 2015; and 
(e)	The new percentage of care decision applies with respect of the applicant from 7 August 2019.

I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak	
.................................[sgd].......................................
Associate
Dated: 9 September 2021

Date of hearing:	5 August 2021	
Advocate for the Applicant:	Ms H	
Solicitors for the Respondent:	Mr J Hutton, Australian Government Solicitor	
Other Party:	Self-represented