Geck and Child Support Registrar (Child support)

[2018] AATA 4350

Geck and Child Support Registrar (Child support) [2018] AATA 4350 (15 October 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/HC014448

APPLICANT:  Ms Geck

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member M Baulch

DECISION DATE:  15 October 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS
CHILD SUPPORT – percentage of care – pattern of care – determination revoked and new determination made – decision under review affirmed

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 number and ages of their children and the percentages of care. 

2. Ms Geck and [Mr A] are the separated parents of [Child 1], [Child 2], [Child 3] and [Child 4].  Since 26 May 2015 the Department of Human Services – Child Support (the Department) has made assessments of child support in respect of the children.  Those assessments had been based upon Ms Geck having 72% care of the children and [Mr A] having 28% care.

3. On 22 November 2017 [Mr A] contacted the Department to advise that since February 2017 he and Ms Geck each had 50% care of the children. 

4. On 28 February 2018, the matter was considered by a Departmental employee who decided that there should be a change to the assessment; such that the percentages of care for the children should record Ms Geck as having 49% care from 1 February 2017 and [Mr A] having 51% care.  Those percentages were applied to the child support assessment with effect from 22 November 2017.

5. Ms Geck objected to that decision and, on 24 May 2018, that objection was partly allowed.  The objections officer decided that the parents should be recorded as each having 50% of care of the children from 19 June 2017, applying to the child support assessment from 22 November 2017 (the decision under review).  Ms Geck has now applied to this tribunal for an independent review of that decision.

6. A hearing into the application for review was held by the tribunal on 15 October 2018. Ms Geck discussed the application for review with the tribunal by telephone and gave evidence under affirmation 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 the Department pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 which were labelled folios 1 to 220, copies of which Ms Geck confirmed she had received prior to the tribunal hearing. 

ISSUES

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

2. The issue which arises in this case is what the care percentages should be applying to the child support assessment in respect of [Child 1], [Child 2], [Child 3] and [Child 4].

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 the children.

2. Since 26 May 2015 the child support assessments applying in respect of Ms Geck and [Mr A] have been based upon Ms Geck having 72% care of [Child 1], [Child 2], [Child 3] and [Child 4] and [Mr A] having 28% care.

3. Subsection 54F of the Act provides that an existing care percentage decision must be revoked if the Department 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. 

4. 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%

1. On 22 November 2017 [Mr A] advised the Department that there had been a change to the care arrangements applying in respect of [Child 1], [Child 2], [Child 3] and [Child 4], such that since February 2017 each parent had 50% care of the children.

2. Unless a care arrangement applies and that care arrangement is not being complied with, the Registrar will determine the pattern of care based upon the extent of the actual care that a parent has of their child.  A care arrangement is a formal arrangement about the care of a child and includes a written agreement, court order or parenting plan.[1] 

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

3. In this case, the documentary evidence indicates that there is no written agreement, court order or parenting plan in place that pertains to the care arrangements for the children.  Therefore, care is determined by having regard to the actual care each parent is likely to have.  Pursuant to section 54A of the Act the actual care a parent has of a child may be worked out on the number of nights that a child is likely to be in that person’s care in a care period.  This does not prevent other measures being used to determine a parent’s actual care of their child.

4. Ms Geck did not dispute that [Mr A] had increased care of the children.  Her concern was that the date from which [Mr A] was taken to have increased care was not correct.

5. Within the documents is a letter from [Ms B] who provides day care services for Ms Geck’s children [folio 113].  This letter indicated that [Mr A] was the parent that signed the children in and out of day care during the weeks that commenced:

8 May 2017	22 May 2017	19 June 2017	3 July 2017
17 July 2017	31 July 2017	14 August 2017	28 August 2017
11 September 2017	25 September 2017	9 October 2017

Ms Geck did not dispute that this evidence suggested that [Mr A] commenced providing care on a week about basis from 19 June 2017.

1. I therefore found that from 19 June 2017 there was a pattern of care under which Ms Geck was providing care for the children 50% of the time and [Mr A] was providing care 50% of the time.  Having regard to the table on the costs percentages that apply to the statutory formula, I was satisfied that care percentages changing from 72%/28% to 50%/50% would result in a change to the cost percentages that apply in this case.  Therefore, pursuant to section 54F of the Act, the existing care determinations must be revoked.

2. Subsection 54F(2) of the Act explains when a revocation of a care percentage determination takes effect.  If the Department was 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, the revocation of the care determinations takes effect on the day before the day the Department was notified of the change in care.

3. [Mr A] advised the Department of the change in care on 22 November 2017 and I have found that the pattern of care changed from 19 June 2017.  As the Department was advised of the change in care more than 28 days after the change occurred, the existing care determinations are revoked from the day before the Department was notified; that is from 21 November 2017.

4. As I have revoked the existing care determinations for [Child 1], [Child 2], [Child 3] and [Child 4], new care determinations must be made reflecting the current pattern of care.  I have found that from 19 June 2017 each parent had 50% care of the children.  Accordingly:

   ·      Pursuant to section 50 of the Act, I determined that Ms Geck’s percentage of care for [Child 1], [Child 2], [Child 3] and [Child 4] was 50%. 

   ·      Pursuant to section 50 of the Act, I determined that [Mr A]’s percentage of care [Child 1], [Child 2], [Child 3] and [Child 4] was 50%. 

   According to section 54B of the Act, the new care determinations apply from the day after the previous care determinations were revoked, that is from 22 November 2017.

5. Having arrived at care percentage determinations that are identical to those determined by the objections officer, I therefore affirmed the decision under review.

DECISION

The decision under review is affirmed.