Garcia and Garcia (Child support)

[2018] AATA 4164

Garcia and Garcia (Child support) [2018] AATA 4164 (28 August 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC014355

APPLICANT:  Mr Garcia

OTHER PARTIES:  Child Support Registrar

Ms Garcia

TRIBUNAL:Member J Leonard

DECISION DATE:  28 August 2018

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the care percentages to be used in the child support assessment from 18 December 2017 are 86% for Ms Garcia and 14% for Mr Garcia.

CATCHWORDS
CHILD SUPPORT – percentage of care – change to the likely pattern of care – decision to revoke the existing determination of percentage of care and make a new determination – 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. This review concerns the care percentages used in a child support assessment.

2. Mr Garcia and Ms Garcia are the parents of [Child 1] (born 2001).  From 21 January 2015, the assessment of child support was based on a care percentage of 100% for Mr Garcia and a care percentage of 0% for Ms Garcia in respect of [Child 1].

3. On 18 December 2017, Ms Garcia contacted the Department and advised care of [Child 1] had changed as [Child 1] had left Mr Garcia’s care and was living with Ms Garcia’s sister since 17 September 2017. Ms Garcia advised she was supporting [Child 1].

4. On 20 February 2018, a decision was made to vary the care percentages used in the child support assessment to reflect Ms Garcia had a care percentage of 100% and Mr Garcia had a care percentage of 0% affecting the assessment from 18 December 2017.

5. Mr Garcia objected to the decision on 16 March 2018 and on 23 May 2018 his objection was disallowed.

6. On 18 June 2018, Mr Garcia lodged an application for review with the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal). The application was heard on 28 August 2018. The Tribunal spoke to Ms Garcia and Mr Garcia by telephone conference. The Child Support Registrar was not represented at the hearing. In addition to oral evidence, the Tribunal had regard to documents provided by the Department (folios 1 to 227).

ISSUES

1. The issue the Tribunal must decide is whether there was a change to the care pattern for [Child 1], and if so, the appropriate care percentages to be used in the child support assessment.

CONSIDERATION

1. The Department makes determinations of each parent’s percentage of care (a care percentage decision) in accordance with sections 49 to 54L of the Child Support (Assessment) Act 1989 (the Assessment Act). These provisions require the Department to make determinations of each parent’s percentage of care when first making a child support assessment and if there is a change to the care pattern which means that an earlier determination should be revoked.

2. Care percentages must be revoked under section 54F of the Assessment Act if:

   ·the care of a child that is actually taking place does not correspond with a person’s existing percentage of care for the child; and

   ·the pattern of care for the child has changed such that if care was to be determined on the basis of the new care pattern, the care percentages used in the assessment would change and new cost percentages (determined under section 55C of the Assessment Act) would apply.

3. Sections 49 and 50 require the Registrar, or the Tribunal, to determine the likely pattern of care for a child during a period that is considered appropriate (a care period).

4. The concept of care is not defined in the child support legislation. In Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959 the Court stated that in determining to what extent a person has care of a child the following questions may be posed:

   In my view, in determining whether and to what extent a person has care of a child for the purposes of the Child Support (Assessment) Act and the Child Support (Registration and Collection) Act, it is necessary to consider the following:

   a.To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extracurricular activities?

   b.To what extent does the person make arrangements for others to meet the needs of the child?

   c.To what extent does the person pay for the costs of meeting the needs of the child?

   d.To what extent does the person otherwise provide financial support for the child?

   e.To what extent does the child provide for his or her own needs or have those needs met from another source?

   f.To what extent is the child financially independent or financially supported from another source?

Was there a change to the care pattern for [Child 1]?

1. On 2 May 2016 orders were made in the Federal Circuit Court which relevantly provided that [Child 1] was to live with Mr Garcia, spend as much time with Ms Garcia in [City 1] as agreed,  and subject to [Child 1’s] wishes, spend half of the school holidays with Ms Garcia on the South Coast.

2. Mr Garcia advised [Child 1] lived with him and her 21 year old brother and attended school in [City 1]. [Child 1] did not see eye to eye with her brother and went to live with Ms Garcia’s sister who also lives in [City 1]. She was going overseas from [date] October 2017 to [date] January 2018 and Mr Garcia stated he was hopeful that [Child 1] would return to live with him on her return. As it turned out, his son moved out of home in March 2018 and [Child 1] then returned to live with him.

3. Mr Garcia advised that during the time [Child 1] lived with her aunt he remained in contact with her every day either via SMS or telephone call. He did not converse with [Child 1’s] aunt about his daughter.  He took [Child 1] out for lunch or  dinner occasionally, continued to give her pocket money of $10 per week, bought her clothing or personal goods when they went shopping together, continued to pay her private health insurance, gave her $1,500 before she went overseas and approximately 110 euro. He also sent money to her while she was overseas but could not advise the Tribunal of the amount. He estimates [Child 1] slept at his home for seven to 10 nights.

4. Ms Garcia stated that she arranged for [Child 1] to live with her sister where she could continue to attend school. She paid for [Child 1’s] overseas trip in full amounting to approximately $7,000, and was in contact with the overseas host family during her absence. She came to [City 1] every weekend to spend time with [Child 1] before her departure, and believes [Child 1] only slept one or two nights at her father’s home before heading overseas. She supported [Child 1] with pocket money of $50 per week increasing to $80 per week when [Child 1] was overseas. She bought goods and food for her when she saw her on the weekend. Upon [Child 1’s] return to Australia, Ms Garcia commenced to pay her sister $150 per week for [Child 1’s] board and lodging. She continued to pay for [Child 1’s] health insurance. Mr Garcia and Ms Garcia are jointly responsible for [Child 1’s] school fees. Ms Garcia paid for [Child 1’s] year 11 school books.

5. Ms Garcia stated the money Mr Garcia gave to [Child 1] was repayment of money he had borrowed from her, not a contribution to her support. This was denied by Mr Garcia.

6. The Tribunal accepts Ms Garcia’s oral evidence that she arranged for [Child 1] to live with her sister and met the everyday costs of supporting [Child 1]. She was the contact point for [Child 1’s] host family during her absence and paid the significant cost of her overseas exchange. The Tribunal also accepts Mr Garcia’s evidence that he was not estranged from [Child 1], and he continued to contribute to her expenses.

7. Mr Garcia did not take action to ensure the care arrangement was complied with and so section 51 of the Assessment Act has no application in this case.

8. The Tribunal finds there was a change to the care of [Child 1] on 17 September 2017 when she went to live with her aunt.

9. The Tribunal considers that Mr Garcia did not have overnight care of [Child 1] for 20% of the time as he claimed, however he was not estranged from her and did continue to contribute to her care. Ms Garcia however met the majority of [Child 1’s] financial expenses and was the person making arrangements for others to meet [Child 1’s] needs both before and after she travelled overseas. She contributes significantly more to [Child 1’s] financial support and based on their respective financial contribution, emotional support, supervision and the extent to which they made arrangements for others to meet [Child 1’s] needs, the Tribunal finds that from 17 September 2017 Ms Garcia had a percentage of care of 86% and Mr Garcia had a percentage of care of 14% for [Child 1].

10. Section 54F of the Assessment Act applies in this case as there has been a change in care such that if the existing percentages of care were to be revoked and if new percentages of care were determined under section 50 of the Assessment Act, there would be a change that would result in a change to the cost percentages used in the child support assessment (section 55C of the Assessment Act).

11. Ms Garcia notified the Department of the change in care of [Child 1] on 18 December 2017. As this is more than 28 days after the change of care occurred, the existing care percentage determination is revoked from 17 December 2017 and the new care percentages apply from 18 December 2017 (subsection 54F(3) of the Assessment Act).

12. The Tribunal notes the Department was notified of a further change to the care of [Child 1] from March 2018, however that decision is not before the Tribunal to review.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the care percentages to be used in the child support assessment from 18 December 2017 are 86% for Ms Garcia and 14% for Mr Garcia.