Guo and Guo (Child support)

[2019] AATA 6344

Guo and Guo (Child support) [2019] AATA 6344 (10 December 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC017329

APPLICANT:  Mr Guo

OTHER PARTIES:  Mrs Guo

Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  10 December 2019

DECISION:

The decision under review is set aside and, in substitution, Mrs Guo is recorded as providing 58% care to the children with effect from 14 January 2019, and Mr Guo is recorded as providing 42% care to the children with effect from 19 March 2019.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – nights versus daytime care – existing percentage of care determinations 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

1. Mr Guo and Mrs Guo are the parents of [Child 1], [Child 2] and [Child 3]. In 2015 a child support case was registered with the Department of Human Services – Child Support (“the CSA”). From 1 January 2018, Mr Guo was recorded as providing 30% care and Mrs Guo was recorded as providing 70% care to the children.

2. On 19 March 2019, Mr Guo reported a change in care. The CSA decided to not record a change in care. Mr Guo promptly objected to that decision. An objections officer disallowed his objection. Mr Guo promptly applied to the Tribunal for further review. I heard the matter on 10 December 2019. Mr Guo and Mrs Guo gave sworn evidence by conference phone.

3. This case is somewhat unusual because in or around January 2019, Mr Guo moved to a house that was in the same residential complex and Mrs Guo’s house. Their houses are [a certain distance] apart. There appears to be no dispute that if Mr Guo’s care — and for convenience, I will focus on Mr Guo’s care — were to be assessed on his nights of care, the CSA’s decision to not record a change in care would be the preferable decision, taking into account that if Mr Guo’s percentage of care is at least 14% and less than 35%, then variations in his percentage of care within that range do not affect the administratively assessed rate of child support payable: section 55C of the Child Support (Assessment) Act 1989 (“the Act”). There also appears to be no dispute that the children are generally free to travel between the parents’ houses. Mr Guo’s position is that from mid-January 2019, he provided a significant amount of daytime care and his overall percentage of care is not fairly reflected in his pattern of overnight care.

4. Both parents provided witness statements in support of their respective positions, but given the nature of the parents’ arrangement concerning the care of the children, the witness statements were of no assistance in resolving the issues in dispute.

5. Both parents also provided records or summaries of Mr Guo’s nights of care, as well as numerous text messages and the like that were also intended to be of some assistance. Mr Guo also provided a detailed spreadsheet of his hours of care. According to that spreadsheet, he started providing approximately 42% care from January 2019. He assumed that while the children were at school, they were in Mrs Guo’s care.

6. On 4 November 2019 the Tribunal registry wrote to both parents and informed them of the time and date of the hearing. They were both sent a copy of the hearings papers which included the documentation referred to above. On the day before the hearing, the registry sent text messages to both parents reminding them of the details of the hearing. At the hearing, both parents confirmed that they had received the hearing papers, but Mrs Guo did not have her hearing papers with her. She said she “forgot” about the hearing. The utility of the hearing was significantly undermined by Mrs Guo not having her hearing papers with her.

7. Mr Guo provided a calendar onto which he had recorded his nights of care, as well as details concerning those nights of care. Mrs Guo provided a notebook onto which she had listed Mr Guo’s nights of care. There were discrepancies between the two records. I questioned both parents about those records for January and February 2019. Ultimately, Mrs Guo either agreed with, or did not dispute, Mr Guo’s records concerning his nights of care during those two months.

8. I then started to question Mr Guo about his spreadsheet concerning his hours of daytime care. He explained that he generally worked from Monday to Thursday, from 6:00am to 3:30pm, but he sometimes also worked on Friday or Saturday. He said that when he only worked from Monday to Thursday, he usually provided care from 5:00pm to 8:30pm on those four days, and he also provided care from 4:30pm on Thursday to 8:00pm on Sunday. It took some time for Mr Guo to give that evidence because Mrs Guo continued to interrupt him, even after I had directed her to not interrupt him. Eventually she stated that she did not wish to continue disputing the matter, and she was agreeable to Mr Guo being recorded as providing 42% care from January 2019. Quite apart from Mrs Guo’s concession, I consider Mr Guo’s records to be the more reliable evidence on point. His spreadsheet suggests that the pattern of care that he described commenced on 14 January 2019, and I find accordingly. He provided a significant amount of daytime care, and his overall provision of care would not be fairly reflected in a calculation of his overnight care. It is appropriate to calculation the parents’ percentages of care on the basis of their hours of care: section 54A of the Act and 2.2.1. of the Child Support Guide. I find that when Mr Guo reported the change in care he had been providing, and was likely to continue to provide, a pattern of care that equated to 42% care: sections 50 and 54F of the Act. The CSA was not notified of the change in care within 28 days of its occurrence, and so the reduced percentage of care takes effect from when the change in care occurred (and so Mrs Guo will be recorded as providing 58% care with effect from 14 January 2019) and the increased percentage of care takes effect from the date of notification (and so Mr Guo will be recorded as providing 42% care with effect from 19 March 2019): section 54B of the Act.

9. At the end of the hearing, Mr Guo and Mrs Guo agreed that in June or July 2019, Mr Guo resumed his previous pattern of care that equated to 30% care. The parents did not agree on the precise date on which that change in care occurred. I did not hear further from the parents on that issue because it did not relate to the decision under review. It is a matter that either parent can take up with the CSA directly.

DECISION

The decision under review is set aside and, in substitution, Mrs Guo is recorded as providing 58% care to the children with effect from 14 January 2019, and Mr Guo is recorded as providing 42% care to the children with effect from 19 March 2019.