Lizarraga and Lizarraga (Child support)

[2021] AATA 1980

Lizarraga and Lizarraga (Child support) [2021] AATA 1980 (6 May 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/AC020670

APPLICANT:  Mr Lizarraga

OTHER PARTIES:  Child Support Registrar

Ms Lizarraga

TRIBUNAL:Member Y Webb

DECISION DATE:  06 May 2021

DECISION:

The decisions under review are affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations 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 DECISIONS

BACKGROUND

1. This review is about the percentages of care of Mr Lizarraga and Ms Lizarraga in relation to their children aged nine and seven (“the children”). 

2. Since 19 September 2014 the pre-existing percentages of care for the children were determined by Services Australia (Child Support Agency) to be 73% care to Ms Lizarraga and 27% care to Mr Lizarraga.

3. On 2 March 2020 Ms Lizarraga contacted the Child Support Agency and notified that there had been a change in the care of the children from 1 October 2019. She stated that each of the parents had 50% care.

4. On 4 May 2020 Ms Lizarraga again contacted the Child Support Agency and notified that since 1 April 2020 she had had 93% care of the children and Mr Lizarraga had had 7% care

5. Mr Lizarraga disagreed. He stated that from 15 October 2019 his care was nine or 10 nights a fortnight and Ms Lizarraga’s was four or five nights a fortnight. He also stated that from 31 March 2020 his care was eight nights a fortnight (57%) and Ms Lizarraga’s was six nights a fortnight (43%). He contended that Ms Lizarraga should not be attributed with 100% care from April 2020 because he asserted that Ms Lizarraga was withholding care in April 2020.

6. On 29 May 2020 an officer of the Child Support Agency decided that from 1 October 2019 Ms Lizarraga’s care of the children was 42% and Mr Lizarraga’s care was 58% and that from 17 April 2020 Ms Lizarraga had 100% care of the children and Mr Lizarraga had 0% care.

7. On 29 June 2020 Mr Lizarraga objected to that decision. 

8. On 31 December 2020 an objections officer partly allowed Mr Lizarraga’s objection. The objections officer decided that from 21 October 2019 Mr Lizarraga’s care of the children was 65% (nine nights a fortnight) and Ms Lizarraga’s was 35% (five nights a fortnight). The objections officer also determined that from 17 April 2020 the care of the children was 100% to Ms Lizarraga and 0% to Mr Lizarraga. 

9. In relation to the date of effect of the first decision the objections officer decided to apply the change in care – in relation to Mr Lizarraga’s increased care from 21 October 2019 – from the date of notification (that being 2 March 2020). In relation to Ms Lizarraga’s decreased care from 21 October 2019, the new care percentage was applied from the date the care changed (21 October 2019).

10. In relation to the date of effect of the second decision, the objections officer applied that decision from 17 April 2020 for both parents because the Child Support Agency was notified within 28 days of the care change.

11. On 25 January 2021 Mr Lizarraga requested review by the Tribunal.

12. Mr Lizarraga and Ms Lizarraga attended the hearing by way of a telephone conference on 6 May 2021. Both parents gave sworn evidence.

13. The Tribunal notes that there have been a number of percentages of care decisions, including a decision granting 50/50 care from 2 May 2020. However, the Tribunal only has jurisdiction to decide the two care decisions which were originally made on 29 May 2020 and which were both reviewed by an objections officer on 31 December 2020. 

ISSUES

1. The issues for the Tribunal to determine are:

   a)What were the care arrangements in relation to the children in the relevant care periods?

   b)Should a new determination of a percentage of care for the children be made? If so, what is the percentage of care and from when should it apply?

CONSIDERATION

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

2. Percentage of care determinations are made under section 49 and/or section 50 of the Assessment Act. Section 49 of the Assessment Act provides authority to make a determination in circumstances where a parent has no care of the child(ren). Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child(ren) during the relevant care period, the Registrar must determine that person’s percentage of care for the child(ren) during the care period.

3. The Assessment Act provides that the care percentage must be determined for a “care period” which is effectively defined as “…such period…as the Registrar considers to be appropriate having regard to all of the circumstances”. Usually (but not necessarily) the care period will be a 12-month period starting from the date the care of the child(ren) changed and reflect the pattern of care that a person has had, or is likely to have, during the care period. The Tribunal is satisfied that a 12-month care period was appropriate in this case (noting that this will apply only unless or until a further care determination is made).

4. The pattern of care can be established either according to a “care arrangement” or the actual care that is taking place. In this case, court orders were made by the Federal Circuit Court of Australia on 26 June 2020. However, these were made after the periods relevant to this decision. Therefore, the actual care will be relied upon for the decisions under review.

Care decision for the period commencing October 2019

1. Mr Lizarraga contended that he had 100% care of the children for the whole of the October school holidays (two weeks) and also for the period 22 November 2019 to 4 December 2019 (12 days) when Ms Lizarraga went on a cruise.

2. He contended that in the period 1 October 2019 he had had the children in his care routinely for 10 nights a fortnight until 15 October 2019 when his care reduced to nine nights a fortnight.

3. He stated that from 31 March 2020 he has had the children in his care for eight nights a fortnight until 2 May 2020.

4. Ms Lizarraga contended that the care was alternating between the parents but she believed it was always close to a 50/50 arrangement.

5. Both parents provided letters from third parties.

6. Both parents prepared care calendars and there were numerous text messages between the parents. Ms Lizarraga admitted that her care calendar was not 100% accurate and she attributed this to Mr Lizarraga changing the care arrangements at short notice. She also stated that she did not believe that Mr Lizarraga’s care calendar was accurate either.

7. The Tribunal considered all of the available information. Despite reading all of the available evidence the Tribunal could not clearly ascertain what the arrangements were in the October 2019 school holidays although it accepts that Mr Lizarraga had most of the care of the children in that period. Ms Lizarraga’s position is that she had most of the care in the July school holidays. The Tribunal is satisfied that the school holiday arrangements in October 2019 were equivalent to “make up time” in relation to the July holiday arrangements. It seems that both parents agreed with his additional care in the October holidays.

8. In relation to the 12 days (from 22 November 2019 to 4 December 2019) when Ms Lizarraga went on a cruise, the Tribunal accepts that Ms Lizarraga was intending to take the children with her on the cruise and that initially Mr Lizarraga agreed to the children going on the cruise. However, as the time drew closer Mr Lizarraga withdrew his consent. This led to Ms Lizarraga going on the cruise without the children and Mr Lizarraga having care of the children for the duration of the cruise. The Tribunal does not consider that Ms Lizarraga going on a planned holiday constitutes a change of care. Mr Lizarraga knew the dates of the cruise and had initially agreed to the children accompanying Ms Lizarraga. 

9. The Tribunal referred to the Child Support Guide at 2.2.2 whereby it provides guidance about what constitutes a change to the pattern of care. It refers to a parent missing three care events in a row or five events out of eight or missing 20% of the care over 12 months.  It emphasises that an isolated event is not a change in the pattern. While the Tribunal accepts that the children were in Mr Lizarraga’s care for the duration of the cruise the Tribunal considers this to be a “one off” event and the dates of Ms Lizarraga’s cruise were known to Mr Lizarraga. It was not a change in the pattern of care for an indefinite or ongoing period.

10. In relation to the statements of third parties, the Tribunal accepts that they were given in good faith. However, they were not especially helpful to the Tribunal because they were understandably lacking in specific details and they tended to support the parent who obtained the statement.

11. In relation to the care calendars, these were of limited assistance because at times they were contradictory with both parents claiming care on a number of nights.  The Tribunal agrees with the objections officer that when comparing the text messages with the care calendars, Mr Lizarraga’s tend to show that his care records were probably more accurate.

12. However, the Tribunal is mindful that a pattern of care is different from a mathematical calculation of nights over a particular period.

13. The phrase “pattern of care” which is referred to in sections 49(1) and 50(1) of the Assessment Act is not given any special meaning by the Assessment Act. In Parent A and Child Support Registrar and Anor[1] the AAT stated that:

    …a pattern may be construed to mean a regular and intelligible form or sequence discernible in certain actions or situations on which the prediction of successive or future events may be based…..The pattern looked for is not one characterised by precise conformation of detail, day by day, or by unbending regularity.  Some accommodation may be expected for vicissitudes of circumstance in the care of a child, although the extent to which a pattern of care may bend or flex to accommodate variation is a matter to be determined in the facts and circumstances of each case.

    [1] [2013] AATA 562; 137 ALD 426

14. Ms Lizarraga’s position was that overall, taking into account all of the circumstances and fluctuations in care between the parents, the care was approximately 50/50.

15. Mr Lizarraga’s position – as stated in his objection – was that his care was 10 nights a fortnight from 15 October 2019, reducing to nine nights a fortnight until 31 March 2020 and eight nights a fortnight from 31 March 2020 to 2 May 2020.

16. At the hearing Mr Lizarraga told the Tribunal that 65% care to him and 35% to Ms Lizarraga was “probably accurate” for the period from 21 October 2019 up to April 2020.

17. Ms Lizarraga’s position was that she thought that 35% care attributed to her was a little lower than the actual care which she still thought was closer to 50%. However, she stated that she had “moved on” and accepted the outcome. She stated that perhaps her calendar was not entirely accurate but that was mostly due to Mr Lizarraga changing plans without notice. She stated that she did not accept that Mr Lizarraga’s care diary was accurate.

18. In considering the totality of the evidence the Tribunal is reasonably satisfied that the most consistent pattern of care was that from 21 October 2019 Mr Lizarraga had care usually nine nights a fortnight and Ms Lizarraga had care usually five nights a fortnight. This calculates to nine nights X 26 = 234 nights/365 = 64.1% = 65% care to Mr Lizarraga and 35% care to Ms Lizarraga. (In accordance with section 54D of the Assessment Act the lower percentage of care is rounded down and the higher percentage rounded up.)

19. Therefore the Tribunal concludes that it agrees with the decision of the objections officer that from 21 October 2019 Mr Lizarraga’s percentage of care was 65% and Ms Lizarraga’s percentage of care was 35%.

20. A care determination must be revoked if the Registrar is notified or otherwise becomes aware that the care that is actually taking place does not correspond with the existing percentage of care for the children and the responsible person’s cost percentage would change if a new determination were made: section 54F of the Assessment Act.

21. In the administrative formula, a parent’s notional contribution to the costs of the child by provision of care is called the cost percentage. Section 55C of the Assessment Act details how the percentage of care affects the 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. Prior to 21 October 2019, the pre-existing care was that Mr Lizarraga had 27% care of the children and a cost percentage of 24%. Ms Lizarraga had 73% care and a cost percentage of 76%. The Tribunal’s determination will mean that Mr Lizarraga will, from 21 October 2019, have a care percentage of 65% and a cost percentage of 75%. Ms Lizarraga will have a care percentage of 35% and a cost percentage of 25%. Accordingly, the Tribunal is satisfied that if new determinations were to be made, both parents’ cost percentages would change. As all of the requirements of subsection 54F(1) of the Assessment Act are met (and as section 54G of the Assessment Act does not apply because the Tribunal’s determination has not resulted in either of the parents having less than regular care), the pre-existing determinations of percentage of care must be revoked in accordance with section 54F of the Assessment Act.

2. Subsection 54F(3) of the Assessment Act specifies when the revocation of the determination takes effect. The date of effect depends on whether the Child Support Agency was notified of the care change within 28 days after it occurred. The Tribunal has found that the care change occurred on 21 October 2019. The Tribunal also finds that Ms Lizarraga notified the Child Support Agency of the change on 2 March 2020. As the Child Support Agency was notified more than 28 days after the change occurred, the revocation of the existing determination takes effect in accordance with paragraph 54F(3)(b) of the Assessment Act.

3. Mr Lizarraga’s care of the children has increased and according to subparagraph 54F(3)(b)(i) his existing care percentage of 27% will be revoked from 1 March 2020 being the day before the Child Support Agency was notified of the care change.

4. Ms Lizarraga’s care has decreased and according to subparagraph 54F(3)(b)(ii) her existing care percentage of 73% will be revoked from 20 October 2019 being the day before the change of care day.

5. An interim period does not apply in this case. Hence section 51 of the Assessment Act is not applicable. Having revoked the existing determinations, the Tribunal must now make new determinations of Mr Lizarraga’s and Ms Lizarraga’s percentages of care under section 50 of the Assessment Act.

6. Section 54B of the Assessment Act sets out the date of effect of the new determinations of percentages of care. The percentage of care applies to each day in a child support period on and from the “application day”. In accordance with subparagraph 54B(2)(c)(ii), the application day for the new determinations of percentages of care is the day after the revocation of the existing determinations.

7. The Tribunal has revoked Mr Lizarraga’s existing determination with effect from 1 March 2020; therefore the change of care applies from 2 March 2020 for Mr Lizarraga.

8. The Tribunal has revoked Ms Lizarraga’s existing determination with effect from 20 October 2019; therefore the change of care applies from 21 October 2019 for Ms Lizarraga.

9. As the Tribunal agrees with the decision of the objections officer, the decision is affirmed.

Care decision for the period commencing April 2020

1. On 4 May 2020 Ms Lizarraga contacted the Child Support Agency. She asserted that the children had been in her 93% care and Mr Lizarraga’s 7% care from 1 April 2020. She advised the Child Support Agency that from 17 April 2020 she had 100% care and that in the period 1 April 2020 to 16 April 2020 Mr Lizarraga had had three nights of care.

2. Mr Lizarraga disagreed. He asserted that he had 10 nights of care in the period between 1 April 2020 and 16 April 2020 and that since 17 April 2020 Ms Lizarraga withheld care of the children.

3. Ms Lizarraga disputed that she was deliberately withholding care. She stated that the care in April 2020 was “totally chaotic”. She stated that Mr Lizarraga was unpredictable in relation to the care of the children and she didn’t know what was happening. She believed that Mr Lizarraga had amended the agreement made at mediation without informing her. She stated that Mr Lizarraga had threatened to withhold the children. She stated that she and the children needed a reliable and structured pattern of care. Having the children in her 100% care made the parties work out a plan about caring for the children.

4. There appears to be no dispute that from 17 April 2020 until 2 May 2020 (when a subsequent change in care was made) Mr Lizarraga had no care of the children and the children were in the 100% care of Ms Lizarraga. The Tribunal accepts that the arrangements from 17 April 2020 were not agreed between the parents. Ms Lizarraga’s position was that the children were in her 100% care from 17 April 2020 and that they remained in her 100% care because Mr Lizarraga would not work out a suitable, agreed care plan with her. Mr Lizarraga’s position was that Ms Lizarraga was withholding the care of the children without his consent.

5. The Tribunal finds that there was a change of care on 17 April 2020 and that in the 12-month care period the likely pattern of care was (at that time) that Ms Lizarraga would have 100% care and Mr Lizarraga 0% care. There is no dispute that that the care that was occurring from 17 April 2020 was not a planned and agreed change.

6. A care determination must be revoked if the Registrar is notified or otherwise becomes aware that the care that is actually taking place does not correspond with the existing percentage of care for the children and the responsible person’s cost percentage would change if a new determination were made: section 54F of the Assessment Act.

7. As detailed above, subsection 54F(3) of the Assessment Act specifies when the revocation of the determination takes effect. The date of effect depends on whether the Child Support Agency was notified of the care change within 28 days after it occurred. The Tribunal has found that the care change occurred on 17 April 2020. The Tribunal also finds that Ms Lizarraga notified the Child Support Agency of the change on 4 May 2020. As the Child Support Agency was notified less than 28 days after the change occurred, the revocation of the existing determination takes effect in accordance with paragraph 54F(3)(a) of the Assessment Act being the day before the change of care day (16 April 2020).

8. An interim period does not apply in this case. Hence section 51 of the Assessment Act is not applicable. Having revoked the existing determinations, the Tribunal must now make new determinations of Mr Lizarraga’s and Ms Lizarraga’s percentages of care under sections 49 and 50 of the Assessment Act.

1. Section 54B of the Assessment Act sets out the date of effect of the new determinations of percentages of care. The percentage of care applies to each day in a child support period on and from the “application day”. In accordance with subparagraph 54B(2)(c)(ii), the application day for the new determinations of percentages of care is the day after the revocation of the existing determinations.

2. Therefore, the percentages of care of 100% to Ms Lizarraga and 0% to Mr Lizarraga apply from 17 April 2020.

3. As the Tribunal agrees with the decision of the objections officer, the decision is affirmed.

DECISION

The decisions under review are affirmed.