Federal Court of Australia

Child Support Registrar v BKCZ [2023] FCA 1109

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the Administrative Appeals Tribunal given on 8 April 2022 be set aside.

2.    The case be remitted to be heard and decided again, with the hearing of any further evidence that may be considered relevant, by the Administrative Appeals Tribunal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THOMAS J:

BACKGROUND

1    BKCZ (the mother) and HBVN (the father) are parents of two minor children. The children predominantly reside with their mother in Queensland. The father resides in Western Australia. Leading up to hearings before the Administrative Appeals Tribunal (AAT), the existing percentage of care determinations with respect to care provided by the mother and the father were determined in accordance with the parenting orders of the Federal Circuit Court of Australia dated 8 April 2013 and amended 17 December 2013.

2    The percentage of care determinations were recorded as 86% to the mother and 14% to the father from 20 January 2016.

3    Due to the Coronavirus pandemic, the care arrangements were disrupted. On 22 March 2020, the mother sought to notify the Child Support Agency that there was a change in the pattern of care.

4    On 29 April 2020, the father disputed the change in care arrangements.

5    On 29 April 2020, an authorised officer of the Child Support Registrar (Registrar) made a percentage care decision which revoked the existing percentage of care determination with effect from 7 April 2020 and determined a new percentage of care.

6    On 3 May 2020, the father lodged an objection against the Registrar’s decision.

7    On 21 November 2020, an authorised objections officer decided to disallow the objection.

8    On 7 December 2020, the father appealed for a first tier review of the objection decision in the Social Security and Child Support Division (SSCSD) of the AAT.

9    On 13 April 2021, the SSCSD delivered its decision.

10    On 4 May 2021, the mother applied for a second review with the General Division of the AAT.

11    The AAT delivered its reasons on 8 April 2022.

12    On 6 May 2022, the mother appealed from the decision of the AAT.

REPRESENTATION

13    Ms Horsley, instructed by Mills Oakley, appeared on behalf of the Registrar at the hearing. The mother and father were self-represented. Mr Williams KC was appointed amicus curiae.

14    The Court records its gratitude to Mr Williams as amicus curiae for the assistance given in relation to the appeal.

QUESTIONS OF LAW

15    The questions of law were as follows:

1.    Did the [AAT] err in determining that the circumstances of the case justified a point-in-time approach with respect to the application of section 49 and 50 of the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act)? More precisely:

a.    is the adoption of a point-in-time approach (referable to the date of the notification of the change) contrary to the legislative text, its intention and its context within both the broader child support and family assistance regimes – in cases where a decision maker is in a position to consider events occurring (for example, evidence going to any pattern of care a responsible person has actually had or is likely to have in the care period) after the date of the notification of the change; and

b.    was the [AAT] obliged to adopt an approach incorporating a consideration of events occurring after the date of the notification of the change – in this case?

2.    Did the [AAT] err in its failure to consider and apply relevant provisions of the Assessment Act to the facts of the case, being:

a.    s54G, which provides that an existing percentage of care must be revoked in certain circumstances;

b.    s54F, which provides that an existing percentage of care must be revoked in certain circumstances (if s54G does not apply);

c.    s54H, which provides that an existing percentage of case may be revoked in certain circumstances (if s54G and s54F do not apply)?

3.    By failing to address within the written reasons whether (and if so, how) ss 54G, 54F and 54H of the Assessment Act had application to the case, did the [AAT] fail to comply with its statutory duty under s43(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act)?

4.    When purporting to apply s51 of the Assessment Act, did the [AAT] err in its failure to:

a.    first, and so as to enliven s49(2) or s50(2), for the purpose of s51(1)(a):

i.    determine the basis on which the existing percentage of care determinations were revoked, per s49(1)(b)(i) or s50(1)(b)(i);

ii.    consider what care period was appropriate having regard to all the circumstances under s49(1)(b)(ii) or s50(1)(b)(ii);

b.    determine whether any other care arrangement (beyond the parenting orders) applied in relation to the children, for the purpose of s51(1)(b);

c.    determine two percentages of care in relation to [the father] under s51(2), and the days to which each percentage of care applied pursuant to s54C(2) and 53A?

5.    When delivering its written reasons, did the [AAT] fail to comply with its statutory duty under s43(2) of the AAT Act, by failing to:

a.    first, and so as to enliven s49(2) or s50(2), for the purpose of s51(1)(a):

i.    determine the basis on which the existing percentage of care determinations were revoked, per s49(1)(b)(i) or s50(1)(b)(i);

ii.    consider what care period was appropriate having regard to all the circumstances, under s49(1)(b)(ii) or s50(1)(b)(ii);

b.    determine whether any other care arrangement (beyond the parenting orders) applied in relation to the children, for the purpose of s51(1)(b);

c.    determine two percentages of care in relation to [the father] under s51(2), and the days to which each percentage of care applied pursuant to s54C(2) and 53A?

6.    When delivering its written reasons, did the [AAT] fail to comply with its statutory duty under s43(2) of the AAT Act, by failing to:

a.    ensure the reasons were consistent with the point-in-time approach found to be justified;

b.    make a material conclusion of law, in respect of the contention raised at [46] of the Child Support Registrar’s Statement of Facts, Issues and Contentions lodged 25 November 2021 (the Registrar’s Statement).

(emphasis, italics and errors in original)

16    Questions of law 4(b) and 5(b) were not pressed.

17    The grounds relied upon were as follows:

1.    The [AAT] erred in determining that the circumstances of the case justified a point-in-time approach with respect to the application of section 49 and 50 of the Assessment Act, given:

a.    as a general proposition, the adoption of a point-in-time approach (referable to the date of the notification of the change) is contrary to the legislative text, its intention and its context within both the broader child support and family assistance regimes - in cases where a decision maker is in a position to consider events occurring (for example, evidence going to any pattern of care a responsible person has actually had or is likely to have in the care period) after the date of the notification of the change, for the reasons advanced in [32] to [47] of the Registrar’s Statement;

b.    more specifically, in relation to this case, the [AAT] was obliged to adopt an approach incorporating a consideration of events after the date of the notification of the change because:

i.    the existing percentage of care determinations were determined in accordance with parenting orders made by the (then) Federal Circuit Court of Australia in 2013 (the parenting orders);

ii.    under the existing percentage of care determination [the father] was to have regular care, being a percentage of care of 14%;

iii.    in relation to [the father] any reduction in care of the children would result in:

1.    a pattern of care that is less than regular care, for the purposes of s54G(1)(b);

2.    a change to the cost percentage, for the purposes of s54F(1)(b);

3.    another percentage of care for the purposes of s54H(1)(b);

iv.    text messages between the parents on 22 March 2020, evidenced a written agreement between the parents related to the care of the children and confirmed there was to be a reduction in [the father’s] care of the children during April 2020;

v.    [the father] did not then have care of the children during April 2020, for the ten-day period (which had previously been contemplated by the parenting orders, but cancelled by written agreement between the parents);

vi.    subsequent to that, [the father] did not have care of the children in July 2020 or September 2020, for two (2) further periods of ten days which had been contemplated by the parenting orders;

vii.    there was a factual dispute between the parents as to the reasons why [the father] did not have care of the children in July or September 2020;

viii.    [the father] did have care of the children from 28 December 2020 to 25 January 2021 (which incorporated ‘make up time’ in addition to the usual period contemplated by the parenting orders); and

ix.    the [AAT] was in a position to do so, and each of the above factors were circumstances directly relevant to the [AAT’s] consideration and determination of:

1.    whether the existing percentage of care determinations were required to be revoked under s54G or s54F, or otherwise able to be revoked under s54H;

2.    what care period would be appropriate for the purposes of s49 or 50;

3.    whether there was no pattern of care, or a pattern of care, for the children (and the determination of a percentage of care) during such care period;

4.    whether s53(1)(c) meant that s51 had no application in relation to the percentage of care determination which was to be made;

5.    what the first and second percentage of care would be, under s51(2), if s51 did have application, and the days (in a child support period) to which each percentage of care would apply pursuant to s54C(2) and 53A.

2.    When making its decision, the [AAT] neither considered nor applied ss54G, 54F or 54H of the Assessment Act and it was necessary to do so.

3.    The [AAT] failed to provide adequate reasons, or make the necessary material findings of fact, as to matters which arose for consideration under ss54G, 54F or 54H of the Assessment Act.

4.    If applying s51 of the Assessment Act, the [AAT] was obliged to but did not:

a.    first, and so as to enliven s49(2) or s50(2), for the purpose of s51(1)(a):

i.    determine the basis on which the existing percentage of care determinations were revoked, per s49(1)(b)(i) or s50(1)(b)(i);

ii.    consider what care period was appropriate having regard to all the circumstances, under s49(1)(b)(ii) or s50(1)(b)(ii);

b.    determine whether text messages exchanged between the parents on 22 March 2020 reflected a care arrangement which superseded the parenting orders, in the context of s51(1)(b);

c.    determine two percentages of care in relation to [the father] under s51(2), and the days to which each percentage of care applied pursuant to s54C(2) and 53A.

5.    The [AAT] failed to provide adequate reasons, or make the necessary material findings of fact, as to matters which arose for consideration under s49(1)(b) or s50(1)(b), and ss51(1)(a), 51(1)(b), 51(2), ss54C and 53A of the Assessment Act.

6.    The [AAT’s] reasons:

a.    are inherently inconsistent, in that they deviate from the point-in-time approach found to be justified; and

b.    ought to have included a conclusion of law, in respect of the contention raised at [46] of the Registrar’s Statement.

(emphasis, italics and errors in original)

18    Grounds 4(b) and 5 (relating to s 50(1)(b) only) were not pressed.

Question 1

19    After the Registrar has made a determination, if the matter is referred to the AAT for review, the review may take place well into, or even after, the care period has expired.

20    The question is essentially whether the AAT should take into account factors which were not before the Registrar, but which occurred or became available after the Registrar’s decision by the time of the hearing before the AAT.

21    For determinations well into, or even after, the review period, this would include details of the actual pattern of care provided by the responsible person.

22    This question has been identified as being of general importance to the AAT as there has been a divergence of views evidenced by various decisions of the AAT.

The AAT decision

23    The AAT recognised that there have been two lines of authority which have arisen within the AAT regarding the scope of the jurisdiction when reviewing a care percentage decision the subject of the application under ss 49 and 50 of the Child Support (Assessment) Act 1989 (Cth) (Assessment Act). The AAT identified that the question related to the percentage of care for the child on the basis of the pattern of care each parent “has had, or is likely to have” in the relevant care period.

24    The AAT described the two competing interpretations “with respect to a temporal limitation in the legislation guiding care percentage decisions” as follows:

a)    A point-in-time approach, where the phrase “has had, or is likely to have” incorporates a temporal element to the making of a care percentage decision such that the decision maker, whether at first instance or on review, is limited to considering: one, the pattern of care that the parents have had in the past care period up to the date of notification of the change, and two, the pattern of care that the parents are likely to have in the care period after the date of notification; and

b)    A competing interpretation whereby there is no temporal limitation such that it is open to the decision maker to consider the pattern of care the parents have had or were likely to have in the care period; and accordingly given the passage of time, the [AAT] is in a position to determine the [pattern] of care parents have actually had in the care period because of the passage of time which has passed (i.e. in effect the [AAT] can perform an audit of actual care each parent has had).

(italics in original)

25    The AAT noted that the Registrar contended that it was open to the AAT to consider the pattern of care “the parents actually had in the care period, given the care period is retrospective” (emphasis in original). The AAT noted there was undisputed evidence as to that issue.

26    The AAT referred (at [34] of its decision in BKCZ and Child Support Registrar (Child support second review) [2022] AATA 725) to a decision in F v LP (Child Support) [2015] AATA 321 (unreported) (F v LP) where the Senior Member said (at [57]):

Care decisions are generally predictive in nature, given the period to which they apply at the time they are made. However, where, as is the case here, evidence of the “actual care” provided by the parents of the child in the relevant care period is available (i.e. because the relevant care period has already passed), the [AAT] should have regard to the “actual care” that was provided during the period under review: see Shi v Migration Agent Review Authority [2008] HCA 31. In Shi, the High Court held that it was open to the [AAT] to take into account conduct and events that occurred after the original decision was made, and that the [AAT] was not confined to the evidence that was before the original decision-maker, unless the legislative scheme requires the decision to be made by the [AAT] with reference to a particular point in time.

27    The AAT concluded (at [35]) that:

Whilst the [AAT] accepts that it is not limited to considering the circumstances as they existed as at the date of notification of the change in care of the relevant children, and that it may inform itself as it considers appropriate as to the actual care of the relevant children during the care period; for the reasons which follow, the [AAT] is of the view that the circumstances of this case justify a point-in-time approach with respect to the application of sections 49 and 50 of the Assessment Act.

(italics in original)

The role of the AAT and the evidence it takes into account

28    The creation of the AAT, with the powers vested in it by the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), saw the implementation of a scheme of administrative review beyond that which was available in the court system marked by the jurisdiction of the AAT to re-exercise the function of the administrative decision-maker so as to determine the correct or preferable decision.

29    The AAT is a tribunal not a court. Its function is not to undertake appeals, but to undertake merits review where the AAT stands in the shoes of the original decision-maker to re-exercise the function of the original decision-maker to determine the correct or preferable decision. The AAT does not review decisions according to the principles and rules which govern applications for judicial review or appeals. The AAT is an instrument of government administration, part of the administrative decision-making continuum. Essentially, the task of the AAT is to deal with the matter as if the original decision-maker were deciding the matter at the time that it was before the AAT.

30    In undertaking the review, the AAT determines the question by reference to the material before the AAT, and not limited to that material before the original decision-maker. This includes information which comes into existence, or events which occur, after the date of the original decision (up to the time of the hearing before the AAT).

31    As Bowen CJ and Deane J concluded in Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 (at 419):

The question for the determination of the [AAT] is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for the determination of the [AAT] is whether that decision was the correct or preferable one on the material before the [AAT].

32    As Kirby J said in Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 (Shi) (at [41]): “When making a decision, administrative decision-makers are generally obliged to have regard to the best and most current information available”. Kirby J went on to observe: “This rule of practice is no more than a feature of good public administration”.

33    As Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 (Peko-Wallsend) observed (at 45):

It would be a strange result indeed to hold that the [decision-maker] is entitled to ignore material of which [the decision-maker] has actual or constructive knowledge and which may have a direct bearing on the justice of making the [decision], and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading.

34    That position applies with respect to the AAT, given its position and role in the continuum of administrative decision-making.

35    Of course, the AAT is a creature of statute and its jurisdiction is derived from the AAT Act and the particular referring legislation.

36    Given the source of power is contained in the AAT Act and the referring legislation, it is necessary to have regard to the legislation in determining what must be considered at any particular review.

37    In determining what must be considered, it is necessary in each case to identify the precise nature and incidents of the decision that is the subject of review (Shi at [43]). Whilst there is a general approach (deriving in particular from the statutory function of substituting one administrative decision for the other) of making the decision by reference to the material before the AAT, the particular nature of the “decision” may sometimes exceptionally confine the AAT’s attention to the state of the evidence at another time (Kirby J at [46] and Hayne and Heydon JJ at [99]).

38    Kiefel J (as her Honour then was) concluded that identifying the question raised by the statute for decision will usually determine the facts which may be taken into account in connection with the decision (Shi at [142]).

39    Kiefel J continued (at [143]) that:

Where the decision to be made contains no temporal element, evidence of matters occurring after the original decision may be taken into account by the [AAT] in the process of informing itself. Cases which state that the [AAT] is not limited to the evidence before the original decision-maker, or available to that person, are to be understood in this light. It is otherwise where the review to be conducted by the [AAT] is limited to deciding the question by reference to a particular point in time.

(footnotes omitted)

40    In Frugtniet v Australian Securities and Investment Commission (2019) 266 CLR 250; [2019] HCA 16 (Frugtniet), Kiefel CJ, Keane and Nettle JJ, when describing the practise of taking into account evidence that was not before the original decision-maker, including events subsequent to the original decision, concluded that, to do otherwise, would require a “clearly expressed contrary statutory indication” (at [15]).

41    It is clear that the general rule requires the AAT to take into account all material available at the time of the hearing before the AAT, including material which was not before the original decision-maker. That is the point from which there may be a departure because of the terms of the referring legislation. In considering the effect of particular referring legislation, that underlying position will only be altered where there is a clearly expressed contrary statutory indication. Central to that issue will be whether the referring legislation clearly imposes a temporal element which may mean that the AAT must have regard only to information which was available at the earlier time.

42    In terms of considering the requirements of (and any limitations imposed by) the referring legislation, the starting point in considering a statutory provision is, of course, the text of the provision considered in light of its context and purpose (Child Support Registrar v MQMV (2019) 79 ALR 298; [2019] FCA 1171 at [40] (per Flick J)).

43    Generally, the intention of the Parliament must be discerned by the language used in the statute and, in terms of the language used, the words should be given their natural and ordinary meaning (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ)).

The operation of the Child Support (Assessment) Act 1989 (Cth)

44    The relevant referring legislation is the Assessment Act. The Assessment Act aims to ensure that children receive a proper level of financial support from their parents. Part 4 provides for applications to be made to a Registrar for administrative assessment of child support. The Registrar must, amongst other things, assess the annual rate of child support payable by a parent for the child in question (s 31).

45    Sections 49 and 50 fall within Subdivision B (which deals with “Determination of percentage care”), which is within Division 4 (dealing with “Percentage of care”) of Part 5 (which deals broadly with “Administrative assessment of child support”).

46    The Registrar is obliged to identify a pattern of care for the child during the care period. Section 49 applies where the Registrar is satisfied that a responsible person for the child “has had, or is likely to have” no pattern of care and s 50 applies where the Registrar is satisfied that the responsible person has had, or is likely to have a pattern of care.

47    In each case, the Registrar must determine the responsible person’s percentage of care for the child during the care period (subs (2) in each case).

48    Where the Registrar determines, and is satisfied, that the responsible person for the child “has had, or is likely to have” no pattern of care for the child during the care period, the percentage of care determined “must be 0%” (s 49(1)(3)).

49    Where the Registrar determines, and is satisfied, that the responsible person “has had, or is likely to have” a pattern of care for the child during the care period, the percentage of care determined by the Registrar under s 50(3) “must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period”.

The opposing interpretations

50    As I have said earlier (at [24]), the AAT identified two different interpretations: one described as a “point-in-time approach”, based on the assumption that the legislation incorporates a temporal element as to the making of a care percentage decision, and a competing interpretation, which is based upon there being no temporal limitation.

51    As to the “point-in-time approach”, the Deputy President in Chadwick and Cummins (Child Support) [2016] AATA 2009 (Chadwick) concluded that:

4.    … Both [ss 49 and 50] reflect the idea that the [Department of Human Services - Child Support (the Department)] makes point-in-time care decisions on the basis of what has happened up until the change in care is considered and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate and when such a divergence occurs, a parent can notify the Department and a new care determination can be made. However, the legislative test at first instance and on review remains the same: what had happened until the date of the notification and what was likely to happen thereafter?

…

9.    … However, given the scheme of the [AAT] Act (existing care percentages generally apply until a change is notified and a new decision with mostly prospective effect is made), the real test is to consider the actual or likely pattern of care when (the applicant) notified the Department … This involves an assessment of past care to notification … and likely future care (the extent of past and future assessment depending on the care period identified as appropriate to use). It is not the [AAT’s] task here to assess care in retrospect, taking account of actual care to the date of hearing.

(emphasis in original)

52    Later AAT decisions also refer to the primary decision-maker’s essential task being to consider any pattern of care based on actual care to the time of notification and likely care thereafter, giving rise to a clear “temporal element” in reviewing care percentage decisions, having regard to the actual or likely pattern of care at the point-in-time of the initial notification to the Department of Human Services - Child Support (Department) (Jordan and Jenkin (Child support) [2019] AATA 1744 at [14]; Mair and Mair (Child support) [2018] AATA 4894 at [24]; and Clancy and Tranter (Child support) [2019] AATA 1738 at [10]).

53    In a further AAT decision, the Member concluded that the AAT may review only the primary decision, with the legislative scheme dealing with any such subsequent change of care (as may occur in the months which pass before the AAT conducts the review), by requiring further notification to the Child Support Agency so that a new primary care decision can be considered, and made if appropriate (Hollier and Hollier (Child support) [2018] AATA 3490 at [14]).

54    As submitted by the amicus curiae, a summary of that position seems to be as follows:

(a)    the AAT stands in the shoes of the primary decision-maker;

(b)    the AAT thus undertakes the review at the point-in-time of the primary decision and does so disregarding evidence of events arising after the date of notification to the Department;

(c)    on a construction of either s 49 or s 50, there is a temporal element imposed which casts a delineation between differing periods, implicitly (but not so specifically described) to give effect to the phraseology “has had, or is likely to have” within the meaning of those provisions. That delineation is:

(i)    on the one hand, the period of care of a child from the date of the occurrence of the change to when the Department is notified so as to give effect to the phrase “has had”; and

(ii)    on the other hand, so as to give effect to “is likely to have” a prospective assessment of the balance of the care period, informed by the finding of any changes or agreement arising under the first enquiry;

(d)    if what is assessed prospectively to occur does not eventuate the remedy lies in a further notification to the Department and a new care determination can be made from that date;

(e)    the Assessment Act does not provide a means by which parents might seek to lead evidence of what in fact occurred following the date of notification for the duration of the care period to the extent it differs from the prospective enquiry, so as to effectively have the AAT undertake an audit of the care assessment; and

(f)    concomitantly the task on review is not to assess the issue of care retrospectively but to adopt the primary decision-maker’s task, where it arises, of finding what “is likely” to occur.

55    As to the competing interpretation, prior to the decision in Chadwick, historically the AAT (principally in Second Tier reviews before the General Division of the AAT) appears to have adopted the approach that relevant evidence (available at the time of the AAT determination) was considered which informed, retrospectively, the actual care of the child for the entirety of the care period (RRBK and Child Support Registrar (Child support second review) [2016] AATA 575; JBRJ and Child Support Registrar (Child support second review) [2016] AATA 27; Confidential and Child Support Registrar and Anor [2014] AATA 255; and BDPD and Child Support Registrar and Anor [2015] AATA 376).

56    The Senior Member in F v LP set out this approach as:

(a)    the AAT was not confined in relation to the evidence it may take into account;

(b)    where there was available evidence of the “actual care” provided by the parents in the relevant care period (because the time had passed), the AAT should have regard to the “actual care” divided during the period under review; and

(c)    neither the Assessment Act nor the AAT Act confines the AAT’s ability to take into account new evidence or evidence of actual events occurring after the original decision was made in the premises of a resolution of dispute over the care of the child in a single care.

Consideration

57    It is necessary to review the contents of the Assessment Act to determine whether there is a clearly expressed statutory intention to impose a temporal element in the consideration of the decision which the Registrar must make as to whether the responsible person “has had, or is likely to have” a pattern of care for a child during a care period.

58    It is necessary to consider the statutory language to determine the intention of the Parliament.

59    Central to this issue are ss 49 and 50 of the Assessment Act.

60    Section 49 requires that the Registrar must be “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”.

61    Section 50 requires that the Registrar must be satisfied that a “responsible person for the child 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”.

62     Section 50 continues, when referring to the percentage of care determined under subs (2), that it “must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period”.

63    Under consideration is whether those words clearly import a temporal element that displaces the position that the AAT undertakes the review based upon material available at the time of the AAT review, with the result that the AAT would be required to undertake the review based upon the material from an earlier time (suggested to be the date the Department is notified).

64    As described by the amicus curiae (see [54] above), the “point-in-time” argument encompasses that the delineation of the phrase “has had, or is likely to have” includes:

(a)    on the one hand, the care period of the child from the date of occurrence of the change to when the Department is notified so as to give effect to the phrase “has had”; and

(b)    on the other hand, so as to give effect to “is likely to have” a prospective assessment of the balance of the care period informed by the information available when the Department is notified.

65    It is asserted that legislation implies a temporal element by reference to the date when the Department is notified. The date when the Department is notified is, on this approach, the date when the basis of the assessment changes from what the person “has had” to what the person “is likely to have”.

66    There are no specific words used in either of the sections which support that construction, nor are there any words used which would support implying such a limitation.

67    As was outlined earlier, the language must be a “clearly expressed contrary statutory indication” (Frugtniet at [15]).

68    There is nothing contained in the statutory text that clearly expresses a statutory indication as to a temporal element. The words are in broad terms, allowing flexibility for the decision-maker. There is no use of words which refer to any earlier date which might limit the information which might be considered to an earlier point-in-time than the date upon which the matter comes before the decision-maker (either the Registrar or the AAT standing in the shoes of the Registrar).

69    The words are sufficiently flexible to enable a decision-maker to take into account what the responsible person has had and what the person is likely to have, depending upon the time in the care period that the decision is taken.

70    Without doubt, the most reliable information which will assist in undertaking the task outlined in ss 49 and 50 is information which is based upon actuals, rather than what might be likely. As Mason J said in Peko-Wallsend at 45(also referred to at [33] above):

It would be a strange result indeed to hold that the [decision-maker] is entitled to ignore material of which [the decision-maker] has actual or constructive knowledge and which may have a direct bearing on the justice of making the [decision], and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading.

71    The sections themselves point to a consideration of “actual care”. For example, s 50(3) requires that the percentage of care determined “must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period” (italics added).

72    The section points to the objective of determining the “actual care”. Those words used are directory in nature in that the subsection requires that the percentage “must” be a percentage that corresponds with the actual care. The section goes on to allow the decision-maker flexibility to cater for different times during the care period that a decision is being made by referring to the Registrar being satisfied by reference to what the responsible person “has had, or is likely to have”. The most effective way of determining the “actual” care is to consider what has happened if that information is available.

73    The delineation, rather than being by reference to when the Department is notified, is up to the date the actual information is available. So, in terms of the requirement (and adopting the description outlined in [64]), the delineation would be:

(a)    on the one hand, the assessment would be from the date of the change to when the decision-maker considers the matter, so as to give effect to the phrase “has had”; and

(b)    on the other hand, so as to give effect to “is likely to have”, a prospective assessment of the balance of the care period (when actual figures are not available) informed by the actual figures which are available.

74    Such an approach better fulfils the object of determining “actual care” and so is more consistent with the requirements set out in ss 49 and 50.

75    Again, in that context, it would be expected that the decision-maker would consider the information which would be most accurate and would therefore be the basis of better quality decision-making. There is no suggestion in the language used in subs (3) that the consideration would be limited to a point-in-time earlier than the time at which the AAT, standing in the shoes of the decision-maker, makes the decision.

76    In s 54A of the Assessment Act, which provides a methodology for determination of actual care, there is nothing in the language used that suggests any requirement on the decision-maker to consider the matter at a time earlier than the date of the decision-making.

77    The principal object of the Assessment Act, as set out in s 4, is “to ensure that children receive a proper level of financial support from their parents”. Particular objects include:

…

(b)    that the level of financial support to be provided by parents … should be determined in accordance with the costs of the children; and

(c)    that the 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 …

…

78    The requirement that the decision-maker considers the most up-to-date information with a view to determining the actual care is consistent with, and enhances, the Objects outlined in the Act.

79    The Registrar has referred to the Explanatory Memorandum to the Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Bill 2010 (Explanatory Memorandum). The Registrar pointed to the fact that, in the discussion in relation to s 54A of the Assessment Act, the Explanatory Memorandum refers to guidance for the Registrar “in working out the actual care and extent of care that a person has of the child”. It refers to the Registrar using a different method to determine the percentage of care if “the number of nights in care does not appropriately reflect the actual care for the extent of care the person has”.

80    The Registrar also referred to In the Best Interests of Children – Reforming the Child Support Scheme – Report of the Ministerial Taskforce on Child Support (Australian Government Department of Families, Housing, Community Services and Indigenous Affairs, May 2005), upon which the current scheme, it was submitted, was primarily based.

81    The Registrar submitted that the extrinsic material makes it clear that the intention of the Assessment Act is to ensure the actual care of the child, to the extent possible, is reflected in the administrative assessment of child support.

82    The Registrar submitted that the adoption of a “point-in-time approach” is contrary to the legislative text, its intention and its context within the broader child support and family assistance regime.

83    In my view, the language used in the sections is sufficiently clear so that there is no need to consider the terms of the Explanatory Memorandum.

84    Having said that, nothing in the Explanatory Memorandum suggests a temporal element is relevant in relation to the matters about which the Registrar must be satisfied for the purposes of ss 49 and 50.

85    It has also been said, in support of the “point-in-time” argument, that, if what is assessed prospectively to occur does not eventuate, the remedy lies in a further notification to the Department and a new care determination can be made from that date. This argument follows that any inaccuracy arising from not using the actual information available at the date of the decision can be corrected in this way. Of course, it is open to an applicant to make a further application, but the fact that an applicant might be able to make a further notification to the Department, and a new care determination might be made, has no bearing on the clear words used in the statute. The fact that this course is available to an applicant does not amount to a clearly expressed contrary statutory indication in the legislation. It would seem that such an approach could lead to inefficiency and delay, which could be avoided by reference to actuals. A further notification not based upon accurate actual information could lead to a repeating error in relation to the same applicant’s notifications because in each notification, on the “point-in-time approach”, the assessment would be no more than likely and could be subject to the same errors which would be avoided if the reference were to actuals. As counsel for the Registrar said during the hearing, “parties would be involved, parents would be involved, responsible persons for the care of children would be involved in an administrative fatigue”. It is unlikely that would have been the intention of the Legislature.

86    In answer to the question of law raised:

(a)    the AAT erred in determining that the circumstances of the case justified a “point-in-time approach” with respect to the application of ss 49 and 50 of the Assessment Act;

(b)    the adoption of a “point-in-time approach” is contrary to the legislative text, its intention and its context within both the broader child support and family assistance regimes; and

(c)    the AAT was obliged to adopt an approach incorporating a consideration of events occurring after the date of notification of the change.

87    On the basis of the conclusions outlined in relation to Question 1, I will order that:

1.    The decision of the AAT given on 8 April 2022 be set aside.

2.    The case be remitted to be heard and decided again, with the hearing of any further evidence that may be considered relevant by the AAT.

88    Following the orders I have made as a consequence of the conclusions I have reached as to Question 1, it is not necessary for me to consider the other questions in order to determine whether the AAT decision should be set aside and the case remitted to be heard and decided again. That decision has been made.

89    However, as the matter will be heard again, I will consider, in broad terms, the issues raised by the Registrar concerning those other questions.

Questions 2 and 3

90    Question 2 relates to whether the AAT erred in its failure to consider and apply relevant provisions of the Assessment Act to the facts of the case being:

(a)    s 54G, which provides that an existing percentage of care must be revoked in certain circumstances;

(b)    s 54F, which provides that an existing percentage of care must be revoked in certain circumstances (if s 54G does not apply);

(c)    s 54H, which provides that an existing percentage of case may be revoked in certain circumstances (if s 54G and s 54F do not apply).

91    Question 3 is related to Question 2 in that it asserts a failure to give adequate reasons as to the questions raised in Question 2 concerning ss 54G, 54F and 54H.

92    The contentions made by the Registrar are against the background outlined by counsel for the Registrar that the Registrar below contended that s 54G could have had application, and the mother contended that s 54F had application. These arguments were clearly put in the Registrar’s submissions before the AAT.

93    Neither of these sections was specifically dealt with in the reasons.

94    The AAT observed at [17], “Subdivision C of Division 4 of Part 5 of the [Assessment Act] outlines circumstances where an existing care determination must or may be revoked” (italics in original). That is correct.

95    That paragraph was the only mention of Subdivision C in the reasons.

96    Sections 49 and 50 each apply where prescribed factors are present (s 49(1)(b), s 50(1)(b)). Each requires that the determination of a responsible person’s percentage of care for a child that was made under (either section) is revoked or suspended under Subdivision C of the Division, except under paragraph 54FA(3)(b) or 54HA(3)(b). To determine whether s 49 or s 50 applies, it is necessary to consider Subdivision C.

97    The sections to which Question 2 of the notice of appeal relate are contained in Subdivision C, which is headed “Revocation and suspension of determination of percentage of care”.

98    Section 54F (“Determination must be revoked if there is a change to the responsible person’s cost percentage”) provides that it only applies where s 54G does not apply (s 54F(1)(c)).

99    Therefore, it is necessary to consider whether s 54G (“Determination must be revoked if there is less than regular care etc.”) applies.

100    Section 54H (“Registrar may revoke a determination of a responsible person’s percentage of care”) only applies where ss 54F, 54FA and 54 G do not apply (s 54H(1)(c)).

101    From the contents of those sections, when considering whether there has been a revocation or suspension under Subdivision C (for the purposes of ss 49(1)(b) and 50(1)(b) so as to evoke the operation of ss 49 and 50), it is necessary to consider:

(a)    first, the position under s 54G;

(b)    second, if s 54G does not apply, the position under s 54F;

(c)    third, if s 54F does not apply, the position under s 54H.

102    In response to the issues being raised in relation to the application of any of those sections, Subdivision C should have been considered and addressed by the AAT in written reasons.

103    In relation to the question of law raised in the notice of appeal, the AAT erred in its failure to consider and apply relevant provisions of the Assessment Act to the facts of this case, being:

(a)    s 54G, which provides that an existing percentage of care must be revoked in certain circumstances;

(b)    s 54F, which provides that an existing percentage of care must be revoked in certain circumstances (if s 54G does not apply);

(c)    s 54H, which provides that an existing percentage of case may be revoked in certain circumstances (if s 54G and s 54F do not apply).

Questions 4 and 5

104    Question 5 is complementary to Question 4. Question 5 raised whether the AAT failed to comply with its statutory duty under s 43(2) of the AAT Act in light of the answers in relation to Question 4.

Question 4(a)

105    As counsel for the Registrar submitted, Question 4(a) raises issues associated with Question 2 concerning the failure to make a determination under ss 54G, 54F and 54H.

106    The Registrar is correct in submitting that it is necessary for the Registrar (or the AAT standing in the shoes of the Registrar) to be satisfied that there has been a revocation or suspension under Subdivision C (to satisfy ss 49(1)(b)(i) and 50(1)(b)(i)). By virtue of the requirements of ss 49(1)(b)(ii) and 50(1)(b)(ii), the Registrar must be satisfied that the responsible person has had, or is likely to have, either no pattern of care for the child during the care period (s 49) or a pattern of care for the child during the care period (s 50).

107    Section 51 applies if four conditions are met (s 51(1)(a)-s 51(1)(d)).

108    One of those conditions is that s 51 applies if the Registrar is required by s 49 or s 50 to determine a responsible person’s percentage of care for a child during a care period (s 51(1)(a)).

109    As has been said earlier, ss 49 and 50 (contained in subss (1)(b)(i) and (1)(b)(ii) in each section) required:

(a)    that the existing percentage determinations were revoked (subs (1)(b)(i)); and

(b)    the consideration of what care period was appropriate having regard to all of the circumstances (subs (1)(b)(ii)).

110    In the absence of those conditions being met, neither s 49 nor s 50 would apply, which, in turn, would mean that s 51 would not apply.

Question 4(b)

111    This question of law was not pressed at the hearing.

Question 4(c)

112    This ground asserts that the AAT failed to determine two percentages of care in relation to the father under s 51(2) and the days to which each percentage of care applied pursuant to ss 54C(2) and 53A.

113    A further condition for the application of s 51 is that “a person who has reduced care of the child is taking reasonable action to ensure that the care arrangement is complied with” (s 51(1)(d)).

114    Section 51(2) provides that “the Registrar must determine, under section 49 or 50, 2 percentages of care in relation to the responsible person”. The first percentage of care must be “the percentage that corresponds with the extent of care of the child that the responsible person should have had, or is to have, under the care arrangement during the care period” (s 51(3)). The second percentage of care must be, “for a determination under section 49—0%” or “for a determination under section 50—a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person would be likely to have during the care period [if action taken by the responsible person (referred to in s 51(1)(d) (see [113])) to ensure that the care management was complied with] were not to succeed” (s 51(4)).

115    Pursuant to s 51(5), if “the Registrar is satisfied that special circumstances exist in relation to the child, the Registrar may determine, under section 49 or 50, a single percentage of care in relation to the responsible person”.

116    The AAT (at [39]) correctly observed that:

[I]f it is found that reasonable action has been taken to ensure care arrangements have been complied with pursuant to section 51(1)(a) to (d) of the Assessment Act; then if special circumstances exist in relation to the relevant children, a single care percentage (rather than two percentages of care, per sections 51(2) to (4) of the Assessment Act) can be determined based upon either the actual care which occurred for the relevant children, if the Registrar is satisfied that the responsible person would be likely to have during the care period if the action referred to in section 51(1)(d) of the Assessment Act were not to succeed.

(italics in original)

117    At [42], the AAT accurately described the requirement to determine two percentages of care in relation to the responsible person by reference to s 51(2) to s 51(4) of the Assessment Act.

118    As to that issue:

(a)    the AAT was satisfied, upon review of the evidence before it, that special circumstances were not established ([41]); and

(b)    the AAT also found (at [85]) that the father took reasonable action to comply with the parenting orders.

119    As required by s 51(2), the AAT should have determined two percentages. It is evident from the AAT’s reasons that two percentages of care were not determined.

120    Counsel for the Registrar also pointed to the requirements of ss 54C(2) and 53A. These sections come into operation where, as is described in s 54C(1)(b), “2 percentages of care were determined for the purposes of subsection 51(2) in relation to the responsible person”. There should have been a determination as to the days to which each percentage of care would apply.

121    In relation to the questions of law raised in the notice of appeal, when purporting to apply s 51 of the Assessment Act, the AAT erred in its failure to:

(a)    first, and so as to enliven s 49(2) or s 50(2), for the purpose of s 51(1)(a):

(i)    determine the basis on which the existing percentage of care determinations were revoked, per s 49(1)(b)(i) or s 50(1)(b)(i);

(ii)    consider what care period was appropriate having regard to all the circumstances under s 49(1)(b)(ii) or s 50(1)(b)(ii);

(b)    [not pursued]

(c)    determine two percentages of care in relation to the husband under s 51(2), and the days to which each percentage of care applied pursuant to ss 54C(2) and 53A.

Question 6

122    There are two questions, (a) and (b).

123    Each arises in relation to the matters raised in Question 1 regarding the adoption of the “point-in-time approach”.

124    Question 6(a) raises whether the AAT’s reasons are inherently inconsistent in that they deviate from the “point-in-time approach” found to be justified. Question 6(b) raises whether the AAT ought to have included a conclusion of law in respect of the contention raised at [46] of the Registrar’s Statement of Facts, Issues and Contentions (Registrar’s Statement), which dealt with the “point-in-time approach” question.

125    The Registrar submitted that, despite the stated adoption of the “point-in-time approach”, the reasons considered evidence concerning the period up to and beyond the time of the notification of the change in care. The Registrar pointed correctly, in [43], to aspects of the reasons where this occurred. The Registrar also correctly referred to the fact that this approach was not applied in the reasons with respect to an application of the provisions of Subdivision C in the context of whether to revoke the father’s existing percentage of care.

126    The amicus curiae referred, in addition, to another suggested inconsistency, submitting that:

[T]he approach in the primary Reasons at [35] which expressly accepts both the approach contended for by the [Registrar] on this Appeal, but then adopts the ‘point in time’ approach (which was squarely raised by the [Registrar] as being contrary to law, but not further commented upon in the Reasons) is both erroneous and internally inconsistent.

(italics in original)

127    In [35], the reasons concluded that:

Whilst the [AAT] accepts that it is not limited to considering the circumstances as they existed as at the date of notification of the change in care of the relevant children, and that it may inform itself as it considers appropriate as to the actual care of the relevant children during the care period; for the reasons which follow, the [AAT] is of the view that the circumstances of this case justify a point-in-time approach with respect to the application of sections 49 and 50 of the Assessment Act.

(italics in original)

128    I agree with the submissions which had been made, that there is an internal inconsistency in the way in which that is put. There is also an internal inconsistency in the way in which the approach is dealt with later in the reasons (and highlighted in the submissions made by the Registrar) in that the “point-in-time approach” does not appear to have been applied in some aspects of the AAT’s reasons.

129    Moreover, having acknowledged that the Registrar submitted that the adoption of the “point-in-time approach” was contrary to the legislative text, the AAT reasons did not deal with that submission, but rather simply expressed the view, without reasons, that the circumstances of the case “justify a point-in-time approach” (italics in original).

130    The reasons of the AAT are inherently inconsistent in that respect.

131    In relation to ground (b), the Registrar queried whether the expression of the AAT’s “view” in [35] “implicitly” reflected the conclusion reached, being a rejection of the contention put by the Registrar and acknowledged at [34] of the reasons, or whether the AAT has failed to make an explicit conclusion of law with respect to that contention.

132    My conclusion is that the AAT has rejected the contention and ruled that the “point-in-time approach” is the correct approach, but has not provided any reasons as it is required to do pursuant to s 43(2) of the AAT Act.

133    In relation to the question of law raised in the notice of appeal – in its written reasons, the AAT did not:

(a)    ensure the reasons were consistent with the “point-in-time approach” found to be justified; and

(b)    make a material conclusion of law, with reasons, in respect of the contention raised at [46] of the Registrar’s Statement.

134    As outlined in [87] above, I will make the following orders:

1.    The decision of the AAT given on 8 April 2022 be set aside.

2.    The case be remitted to be heard and decided again, with the hearing of any further evidence that may be considered relevant, by the AAT.

Associate:    

Dated:    18 September 2023