Alvey and Sargent (Child support)

[2020] AATA 5100

Alvey and Sargent (Child support) [2020] AATA 5100 (31 August 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/AC019306

APPLICANT:  Miss Alvey

OTHER PARTIES:  Child Support Registrar

Mr Sargent

TRIBUNAL:Member M Baulch

DECISION DATE:  31 August 2020

DECISION:

The tribunal set aside the decision under review and, in substitution, decided that the percentages of care that apply to the child support assessment from 23 March 2020 are those that record Miss Alvey as having 100% care of the children and Mr Sargent as having 0% care.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations should be revoked and new determinations made – decision under review set aside and substituted

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.

REASONS FOR DECISION

BACKGROUND

1. The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable by one separated parent to the other.  It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes, the ages and number of children and their percentages of care.

2. Miss Alvey and Mr Sargent are the separated parents of two children.  Since 22 May 2013 the Department of Human Services, now known as Services Australia (Child Support), has made administrative assessments of child support under the Act.  From 11 December 2019 those assessments were determined on the basis that Miss Alvey had 77% care of the children and Mr Sargent had 23% care.

3. On 23 March 2020, Miss Alvey advised Child Support there had been a change to the care arrangements for the children, such that she had 100% care of the children from 23 March 2020.  That information was considered by a Child Support employee, who decided on 24 March 2020, that the care percentages applying in the child support assessment should record Miss Alvey as having 100% care of the children and Mr Sargent as having 0% care. 

4. Mr Sargent objected to that decision and, on 19 June 2020, that objection was allowed.  The objections officer decided that there should be no change to the care percentages that had applied to the child support assessment since 11 December 2019 (the decision under review).  Miss Alvey has now applied to this tribunal for an independent review of the objections officer’s decisions.

5. A hearing into the application for review was held by the tribunal on 31 August 2020. Miss Alvey and Mr Sargent both participated in the hearing by conference telephone and both gave sworn evidence during the hearing. A representative of the Child Support Registrar (the Registrar) did not participate in the hearing. The tribunal had before it relevant documents provided to it by Child Support pursuant to sections 37 and 38AA of the Administrative Appeals Tribunal Act 1975 (79 pages), copies of which the parties confirmed they had received prior to the tribunal hearing. 

ISSUES

1. The statutory provisions relevant to this review application are found in the Act.

2. The issue which arises in this case is what should the care percentages be for the children in the child support assessment?

CONSIDERATION

1. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to their children during a care period.  Since 11 December 2019 the care percentages that have applied to the child support assessment recorded Miss Alvey as having 77% care of the children Mr Sargent as having 23% care. 

2. Usually, the Registrar will determine a pattern of care based upon the extent of the actual care that each parent has of their child.  However, this may not apply if a care arrangement applies and that care arrangement is not being complied with (see section 51 of the Act).  A care arrangement is a formal arrangement about the care of a child and includes a written agreement, court order or parenting plan.[1]  I was satisfied that a care arrangement does not apply in this case and therefore a care percentage is based upon the actual pattern of care taking place. 

   [1] See section 5 of the Act and section 3 of the A New Tax System (Family Assistance) Act 1999.

3. It is uncontested that from 23 March 2020 Mr Sargent has not had care of the children.

4. Mr Sargent’s evidence was that he and Miss Alvey had an agreement that he would have care of the children for the school holidays.  In December 2019 he travelled to Queensland to spend time with the children and planned to do so again for the April school holidays.  Miss Alvey disputes that there was a firm agreement about these arrangements, but her evidence suggested that she would not have opposed to Mr Sargent spending time with the children during the holidays if he were able to travel to Queensland.

5. Mr Sargent’s evidence was that the only reason he was unable to have care of the children during the April and July school holidays, as he had originally planned, was the coronavirus restrictions that prevented him from travelling to Queensland or, more recently, travelling more than 5 kilometres from his home.

6. I acknowledged that Mr Sargent would have liked to spend time with the children during the April and July school holidays, and the only reason he did not do so was due to the coronavirus restrictions and that this was a situation beyond his control.  However, the percentage of care is based on the actual care that was occurring or was likely to take place. 

7. Having regard to the evidence I was satisfied that, given the restrictions in place as at 23 March 2020, it was more likely than not that Mr Sargent would be unable to spend time with the children during school holidays, at least for the next six months or so.  I therefore found that there was a pattern of care from 23 March 2020, such that Miss Alvey had 100% care of the children and Mr Sargent had 0% care.

8. Subsection 54F of the Act provides that an existing care percentage determination must be revoked if the Registrar is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that change would alter the cost percentage used for the parent in the administrative assessment. 

9. Section 55C of the Act contains a table that is used to work out a person’s cost percentage:

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

I was satisfied that the pattern of care that applied from 23 March 2020 results in a change to the cost percentages used for the children in the child support assessment.  Therefore, the existing percentage of care determinations that have applied since 11 December 2019 must be revoked.

1. Subsection 54F(3) of the Act prescribes when a care percentage revocation takes effect.  If Child Support is advised of the change in the care arrangements within 28 days of that change occurring, the revocation takes effect on the day before the change in care.  However, if notification occurs more than 28 days after the change in care arrangements occurs, the revocation of the care determinations takes effect for each parent as follows:

   ·       If the parent’s care of the child has increased – the day before the Registrar is notified, or otherwise becomes aware, of the change in care; or

   ·       If the parent’s care of the child has reduced – the day before the change of care occurred.

2. The care occurring for the children changed on 23 March 2020 and Miss Alvey advised Child Support of this on that same day, which is less than 28 days later.  Therefore, the existing care percentage determinations – that record Miss Alvey as having 77% care and Mr Sargent as having 23% care – are revoked from 22 March 2020.

3. As I have revoked the existing care percentage determinations that apply in respect of the children, I must make new care percentage determinations that reflect the pattern of care from 23 March 2020.  Accordingly, I found that:

   ·       Pursuant to section 50 of the Act, Miss Alvey’s percentage of care for both children is 100%.

   ·       Pursuant to section 49 of the Act, Mr Sargent’s percentage of care for both children is 0%.

   According to section 54B of the Act, the new care percentage determinations apply from the day after the previous care determinations were revoked; that is, from 23 March 2020.

4. Therefore, and for these reasons, I decided to set aside the decision under review and substituted my own decision.

DECISION

The tribunal set aside the decision under review and, in substitution, decided that the percentages of care that apply to the child support assessment from 23 March 2020 are those that record Miss Alvey as having 100% care of the children and Mr Sargent as having 0% care.