Guzman and Hernandez (Child support)

[2023] AATA 2949

Guzman and Hernandez (Child support) [2023] AATA 2949 (21 June 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/SC025448

APPLICANT:  Ms Guzman

OTHER PARTIES:  Child Support Registrar

Mr Hernandez

TRIBUNAL:Member J Bakas

DECISION DATE:  21 June 2023

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – 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 subsesctions 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988

REASONS FOR DECISION

BACKGROUND

1. Ms Guzman and Mr Hernandez are the parents of two children aged about nine and six years of age, in respect of whom a child support assessment is in place.

2. On 13 August 2022, Ms Guzman contacted Services Australia – Child Support (Child Support) to advise that from 1 March 2022, the children’s care changed to Ms Guzman having 315 nights (87%) care and Mr Hernandez having 50 nights(13%) care.

3. At that time and from 1 February 2019, existing care on record for the children was 313 nights (86%) to Ms Guzman and 52 nights (14%) to Mr Hernandez.

4. On 21 November 2022, Child Support decided to not accept the care change had taken place.  Ms Guzman sought a review of that decision on 24 November 2022.  On 18 January 2023 the objection was disallowed.

5. On 19 January 2023 Ms Guzman made an application to the Social Security and Child Support Division of this Tribunal (the Tribunal) for a review of that decision.

6. The matter was heard on 21 June 2023 and both Ms Guzman and Mr Hernandez participated by MS Teams audio.  Both parties gave oral evidence to the Tribunal on affirmation.  At hearing both parties confirmed receipt of documents provided by Child Support.

7. In addition, before the hearing Ms Guzman submitted documents to the Tribunal, a copy of which was sent to the other parties.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

2. The issues which arise in this case are:

   ·Should the existing determination of percentage of care be revoked?  If so, from when should it be revoked?

   ·Should a new determination of a percentage of care be attributed to Ms Guzman and Mr Hernandez in respect of the children?

   ·If there is a change in the percentage of care attributed to the parents, from what date should the administrative assessment be amended to reflect the change?

CONSIDERATION

1. Under the scheme for determining percentages of care for use in the administrative assessment of child support, existing care determinations continue in effect until such time as they are revoked. The circumstances in which an existing care determination may be revoked are restricted to those set out in Division 4, Subdivision C of the Act. Upon revocation, a new percentage of care determination must be made.

Issue one – Should the existing determination of percentage of care be revoked?

1. Sections 49 and 50 of the Act require a new determination of percentage of care for a child to be made where an existing determination has been revoked.

2. Section 54G of the Act provides for the revocation of a determination of a percentage of care if (among other requirements) a responsible person was to have at least regular care for a child under a care determination, but the person has had no care or a pattern of care that is less than regular care.

3. If section 54G of the Act does not apply, section 54F of the Act provides another basis on which a care determination may be revoked. It requires (among other matters) that the Registrar or Secretary be notified, or otherwise become aware, that the care of the child that is actually taking place does not correspond with the person’s existing percentage of care; and the person’s cost percentage for the child would change if the Registrar were to determine another percentage to be the person’s percentage of care for the child.

4. It can be seen, therefore, that in order to revoke an existing care determination under either section 54G or section 54F of the Act, a new pattern of care must be cogently identifiable in order to compare it with the existing percentage of care.

5. The term “pattern of care” is not defined in the legislation. It involves an examination of a person’s future likely care. The care period is such a period as the Registrar considers to be appropriate having regard to all the circumstances (subparagraph 50(1)(b)(ii) of the Act). Australian government policy in this regard, as set out in chapter 2.2.1 of the Child Support Guide (the Guide) which may be followed by Child Support, is that a care period is generally a 12-month period from the day on which the actual care for a child changed. This policy is not binding on the Tribunal and the Tribunal can determine a different care period.

6. There is no dispute that there were existing determinations for Ms Guzman and Mr Hernandez of percentages of care for the children registered with Child Support, being 86% and 14% respectively, made in accordance with section 50 of the Act.

7. Child Support records indicate that Ms Guzman contacted them on 13 August 2022 to notify of a change in the level of care provided to the children from 1 March 2022.

18.Ms Guzman’s evidence and submissions at the hearing included the following:

18.1.The decision of Child Support was based on outdated information.

18.2.The pattern of care is unofficial but has been relatively consistent.

18.3.Mr Hernandez has care of both children every second Friday and Saturday. 

18.4.Last year there were events that fell on Mr Hernandez’s weekend of care and he did not have the children and did not organise a time to have them to make up for the care he missed.

18.5.During school holidays she usually drives the children to stay with their paternal grandparents (which involves a five hour round trip). In 2019 this was usually for a four night stay four times a year but as the children have gotten older it has increased to seven nights at most.

18.6.Their youngest child has a very strong attachment with the mother and when at the grandparents, she speaks to the children every second day.

18.7.The grandparents contact her if they need anything regarding the children.

18.8.As there is no signed written agreement regarding care, she is of the view that the care percentage should reflect the care that has actually occurred. This is what has been explained to her by Child Support.

18.9.She has also been informed by Child Support that as she is the one that is coordinating the stays with the paternal grandparents and organises their care then the nights spent with the paternal grandparents is considered as her care nights. She pays for petrol to get them there and provides clothing for their stay, although she is aware the grandparents have also purchased clothes for the children.

18.10.In relation to stating the care changed in March 2022, she was instructed to pick a date by Child Support when she lodged the change of care.

18.11.Her position includes that the pattern of care has been disrupted too many times to be considered a pattern of care.

19.Mr Hernandez’s evidence at the hearing included the following:

19.1.While there may have been occasions where he could not have the children during his designated weekend, he does have them at other times for three to four nights at a time.

19.2.Often when the children are with his parents, he goes up to see them on the weekend, as he is doing this week of the school holidays.

19.3.He views his parents’ care of the children as his care.  Ms Guzman’s father also has care on occasion but that is considered as being in her care.

19.4.He thinks he has had care more nights than Ms Guzman has recorded because he stays at his parents’ home with the children at times.

19.5.He gives his parents money to pay for activities they take the children to.  His parents contact him while the children are there if they need anything such as if the children are ill.

19.6.His parents have offered to meet Ms Guzman halfway.  Further, when he visits on weekends he will bring the children back to Ms Guzman’s home.

1. I considered the documentary evidence before me including Ms Guzman’ calendar of weekend stays.

2. Ms Guzman is agitating for a change to the pattern of care and that Mr Hernandez has care 50 nights per year rather than 52 nights per year and that she has kept an accurate record of care.

22.  In relation to care determinations and changes in care, section 2.2.2 of the Guide states:

…

Not all changes in care will result in a change to the care percentage. Minor departures from the normal pattern of care for the child, such as missing a weekend of care due to illness or work, will not usually constitute a change to the pattern of care, and will not result in a new care determination.

…

23.  Although not bound by policy as set out in the Guide, the Federal Court has held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.

1. I find that the general agreement between the parents continues to be that Mr Hernandez has the care of the children every second Friday and Saturday. While this may not occur every fortnight, I also accept that Mr Hernandez has care of the children on other occasions including at times when the children are with his parents and that Ms Guzman would not necessarily be aware of.

2. Having considered all of the evidence before me, I am not satisfied to conclude that care was not taking place in accordance with the existing care percentage determination at the time nominated by Ms Guzman for a care change. Occasional ad hoc departures do not necessarily change a pattern of care. I am unable to form the necessary state of satisfaction, on the evidence available, so as to revoke the existing care determination.

3. The effect of the legislation in these circumstances is that the existing care determination continues in effect, as the criteria for its revocation cannot be established.

DECISION

The decision under review is affirmed.