GMZK and Child Support Registrar (Child support second review)

[2017] AATA 141

GMZK and Child Support Registrar (Child support second review) [2017] AATA 141 (10 February 2017)

Division:GENERAL DIVISION

File Number:2016/3188           

Re:GMZK

APPLICANT

AndChild Support Registrar

RESPONDENT

AndMDSY

OTHER PARTY

DECISION

Tribunal:Dr L Bygrave, Member  

Date:10 February 2017

Place:Sydney

The decision under review is affirmed.

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Dr L Bygrave, Member

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

SOCIAL SECURITY – child support – percentage of care – whether new family assistance care determination – whether existing percentages of care attributable – decision affirmed

LEGISLATION

Child Support (Assessment Act) 1989 (Cth) ss 5, 49, 50, 54F, 54K

REASONS FOR DECISION

Dr L Bygrave, Member

10 February 2017

INTRODUCTION

1. GMZK and MDSY are the separated parents of two children, Child A (born in 2000) and Child B (born in 2003). This matter relates to the percentages of care used in a child support assessment for Child A.

2. Since 20 July 2009, the Child Support Registrar (Registrar) has made a number of decisions concerning child support assessment for Child A. Relevant to this matter are the following decisions:

   (a)on 5 February 2014, the Registrar made a decision that MSDY had 100 per cent care of Child A from 28 October 2013;

   (b)on 18 November 2015, the Registrar made a decision that GMZK and MDSY each had 50 per cent care of Child A from 16 October 2014 (original decision).[1]

   [1] Exhibits T1-T19 and T1-T20.

3. MDSY objected to the original decision on 3 December 2015, advising that he had 100 per cent care of Child A from 16 October 2014.[2]

   [2] Exhibit T1-T24.

4. On 30 January 2016, the Registrar decided to disallow MDSY’s objection.[3] MDSY then applied for a review of this decision to the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal.

   [3] Exhibit T1-T37, T1-T38 and T1-T39.

5. On 30 May 2016, the SSCSD decided that there should be no change to the care percentages used in the child support assessment for Child A from 16 October 2014.[4] This meant that MDSY’s percentage of care for Child A remained 100 per cent from 16 October 2014.

   [4] Exhibit T1-T2.

6. On 17 June 2016, GMZK applied to the General Division of the Administrative Appeals Tribunal for a review of the SSCSD decision.

7. The matter was heard in Sydney on 30 January 2017. Both GMZK and MDSY attended the hearing by telephone.

   RELEVANT LEGISLATION AND ISSUES

8. The administrative assessment of child support is set out in Part 5 of the Child Support (Assessment Act) 1989 (the Act). The following parts of the Act are relevant to this review.

   Subdivision B of Division 4 of Part 5 of the Act

9. Percentage of care determinations may be made under sections 49 or 50 of the Act, depending on the pattern of care provided by a ‘responsible person’. ‘Responsible person’ for a child is defined in section 5(1) as ‘a parent or non-parent carer’.

10. Section 50(2) of the Act provides that the Registrar must determine the responsible person’s percentage of care for a child during the care period if, in accordance with subsection 50(1)(b), the Registrar:

    (i)     revokes, under Subdivision C of this Division, a determination of a responsible person's percentage of a care for a child that was made under section 49 or this section; and

    (ii)    is satisfied that the responsible person 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. [emphasis in the original]

11. The ‘care period’ is the period the Registrar considers relevant for its determination of the responsible person’s percentage of care.

    Subdivision C of Division 4 of Part 5 of the Act

12. Section 54F(1) of the Act provides that the Registrar must revoke the existing percentage of care determination 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)…

    (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 … [emphasis in the original]

13. The date of effect of a revocation of an existing percentage of care determination depends upon when the Registrar is notified of the change. Pursuant to section 54F(2), if the Registrar is notified within 28 days, the revocation takes effect from the day before that change of care.

14. Section 54K of the Act provides that, if the Secretary (Centrelink) determines the responsible person’s percentage of care for a child (a family assistance care determination), then the family assistance care determination applies to the child support assessment in the same way it would apply if determined by the Registrar.

15. The issues for determination by the Tribunal are:

    (a)whether there was a change to the percentages of care attributable to GMZK and MDSY in relation to Child A from 16 October 2014; and

    (b)if so, what are the new percentages of care attributable to GMZK and MDSY in relation to Child A, and from what date should these apply.

    Should the existing percentages of care attributable to GMZK and MDSY in relation to Child A be revoked?

16. The Registrar’s Statement of Facts and Contentions dated 16 December 2016 submitted that the original decision by the Registrar on 18 November 2015 was incorrect because it was based on an inaccurate interpretation of electronic records provided to the Registrar from Centrelink. These records set out care arrangements to GMZK and MDSY over two periods of time and then relevantly noted that ‘[t]here is no care decision with DOE 16/10/2014 that has been made for [Child A]…’[5]

    [5] Exhibit T1-T33, p 191.

17. Both GMZK and MDSY provided extensive evidence to the Tribunal about the care they provide for Child A. GMZK submitted that she and MDSY provide care for Child A as set out in Court Consent Orders made on 11 July 2013, which state that GMZK and MDSY have equal shared parental responsibility for Child A and Child B.[6]  MDSY’s evidence contended that he has had full-time care of Child A since October 2013.

    [6] Exhibit T1-T31, pp 147-152.

18. While I accept that variations in the care arrangements for Child A may have occurred over time, this is not the matter before the Tribunal. Rather, the relevant issue I must decide relates to the care decision. I find that, as there was no new family assistance care determination made in October 2014, there was no basis for the Registrar to decide on 18 November 2015 that GMZK and MDSY each had 50 per cent care of Child A from 16 October 2014.

    CONCLUSION

19. As the existing percentages of care attributable to GMZK and MDSY in relation to Child A reflect the current family assistance care determination, I am satisfied that there was no basis to change the care percentages that apply for Child A from 16 October 2014.

    DECISION                

20. The decision under review is affirmed.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of

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Associate

Dated: 10 February 2017

Date of hearing:	30 January 2017
Applicant:	In person
Solicitors for the Respondent:	Ms J Eslick, Department of Human Services
Joined Party:	In person