Marek and Guerra (Child support)

[2019] AATA 3838

Marek and Guerra (Child support) [2019] AATA 3838 (17 June 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC016176

APPLICANT:  Mr Marek

OTHER PARTIES:  Child Support Registrar

Ms Guerra

TRIBUNAL:Member M Baulch

DECISION DATE:  17 June 2019

DECISION:

The tribunal set aside the decision under review and, in substitution, decided that:

• Mr Marek’s care percentage for [Child 1] is 43% and his care percentage for [Child 2] is 47%; and

• Ms Guerra’s care percentage for [Child 1] is 57% and her care percentage for [Child 2] is 53%; and

These percentages apply to the child support assessment from 3 December 2018.

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 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

BACKGROUND

1. This application for review is about the percentages of care that were applied to a child support assessment for Mr Marek and Ms Guerra by the Department of Human Services – Child Support (the ‘Department’).

2. Mr Marek and Ms Guerra are the separated parents of [Child 1] and [Child 2].  Since 26 November 2008 Mr Marek has been assessed as liable to pay child support to Ms Guerra.

3. On 3 December 2018 Mr Marek contacted the Department to advise that care arrangements for [Child 1] and [Child 2] had changed from 30 April 2018.  Mr Marek advised the Department that he had 50% of both children.

4. On 10 December 2018 a departmental employee decided to make a new care determination, such that Mr Marek was recorded as having 50% care of [Child 1] and [Child 2], with the new care determination applying to the child support assessment from 3 December 2018.

5. Ms Guerra objected to that decision and, on 22 February 2019, that objection was partly allowed.  The objections officer decided that the care percentages should record Mr Marek as having 41% care of [Child 1] and 43% care of [Child 2] and Ms Guerra as having 59% care of [Child 1] and 57% care of [Child 2] (the decision under review).  Mr Marek has now applied to this tribunal for an independent review of the Department’s decision.

6. A hearing into the application for review was held by the tribunal on 17 June 2019. Mr Marek and Ms Guerra both participated in the hearing by conference telephone and both gave evidence under affirmation to the tribunal. The tribunal had before it relevant documents provided to it and the parties to the review, by the Department pursuant to sections 37 and 38AA of the Administrative Appeals Tribunal Act 1975, which were labelled folios 1 to 184.  The tribunal also had regard to additional documents lodged by Ms Guerra, labelled B1 to B5.

ISSUES

1. The statutory provisions relevant to this review application are found within the child support law, in particular the Child Support (Assessment) Act 1989 (the Act).

2. The issue which arises in this case is what should the care percentages be in the child support assessment that applies to Mr Marek and Ms Guerra in respect of [Child 1] and [Child 2]?

CONSIDERATION

1. The Act provides for an administrative assessment of the child support payable by one parent to the other.  It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes, the number of children and their percentages of care. 

2. 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 their child. 

3. The bundle of documents before me reveals that the care percentages that had applied to the child support assessment from 26 November 2008 recorded Mr Marek as having 28% care of [Child 1] and [Child 2] and Ms Guerra as having 72% care.

4. On 3 December 2018 Mr Marek advised the Department that he had been having 50% care of both [Child 1] and [Child 2] since 30 April 2018.  During discussions at hearing, I was advised that the care arrangements had changed in early 2018, and most likely from 1 April 2018.

5. Care is generally calculated over a “care period”, which is a period that the Registrar or the tribunal considers to be appropriate having regard to all the circumstances of the matter (section 50 of the Act).  The Department’s policy in this regard, as set out in Chapter 2.2.1 of the Child Support Guide,[1] is that a care period is generally a 12 month period from the day on which the actual care for a child changed. 

   [1] Child Support Guide, Guides to Social Policy Law, Department of Social Services, version 4.40, can be found at >

   I am not bound by the Department’s policy, such as that set out in the Child Support Guide, but in the interests of consistency I would generally apply such policy if not inconsistent with the purposes and objects of the Act.[2]  I considered the policy to be unobjectionable in this case and therefore determined that the care period applying in this case should be 1 April 2018 to 31 March 2019. 

   [2] Drake and Minister for Immigration and Ethnic Affairs [1979] FCA 39

6. I was advised that the pattern of care is somewhat irregular in this case.  While the parents have a goal of sharing care 50-50, changes often occur to accommodate Mr Marek’s work commitments, sometimes at short notice.  Having regard to the evidence at hearing, I found that:

   ·      During April 2018, Mr Marek had care of both children for 13 nights and Ms Guerra had care for 17 nights;

   ·      During May 2018, Mr Marek had care of both children for 14 nights and Ms Guerra had care for 17 nights;

   ·      During June 2018, Mr Marek had care of both children for 11 nights and Ms Guerra had care for 19 nights;

   ·      During July 2018, Mr Marek had care of [Child 1] for 15 nights and [Child 2] for 22 nights and Ms Guerra had care of [Child 1] for 16 nights and [Child 2] for 9 nights;

   ·      During August 2018, Mr Marek had care of [Child 1] for 10 nights and [Child 2] for 15 nights and Ms Guerra had care of [Child 1] for 21 nights and [Child 2] for 16 nights;

   ·      During September 2018, Mr Marek had care of both children for 13 nights and Ms Guerra had care for 17 nights;

   ·      During October 2018, Mr Marek had care of both children for 12 nights and Ms Guerra had care for 19 nights;

   ·      During November 2018, Mr Marek had care of both children for 14 nights and Ms Guerra had care for 16 nights;

   ·      During December 2018, Mr Marek had care of both children for 13 nights and Ms Guerra had care for 18 nights;

   ·      During January 2019, Mr Marek had care of both children for 17 nights and Ms Guerra had care for 14 nights;

   ·      During February 2019, Mr Marek had care of both children for 14 nights and Ms Guerra had care for 14 nights; and

   ·      During March 2019, Mr Marek had care of both children for 14 nights and Ms Guerra had care for 17 nights.

   I consequently found that for the care period commencing on 1 April 2018, Mr Marek had care of [Child 1] for 160 nights and [Child 2] for 172 nights and Ms Guerra had care of [Child 1] for 205 nights and [Child 2] for 193 nights.

7. Applying the rounding rules in section 54D of the Act, I was satisfied that there was a pattern of care from 1 April 2018, such that Mr Marek had 43% care of [Child 1] and 47% care of [Child 2] and Ms Guerra had 57% care of [Child 1] and 53% care of [Child 2].

8. Section 54F of the Act provides that an existing care determination must be revoked if there is a change to a parent’s cost percentage.  Section 55C of the Act contains a table that is used to work out a person’s cost percentage.  In this instance, I was satisfied that the change in care from 1 April 2018 would affect the cost percentages applying in the statutory formula, and determined that the existing care percentage determinations (28% care of both children to Mr Marek and 72% care to Ms Guerra) must be revoked.

9. Subsection 54F(2) of the Act prescribes when a care percentage revocation takes effect.  If the Department is 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.

10. The care arrangements applying for [Child 1] and [Child 2] changed on 1 April 2018, and Mr Marek advised the Department of that change on 3 December 2018, which is more than 28 days later.  Therefore, the existing care determinations are to be revoked from 2 December 2018.

11. As I have revoked the existing care percentage determinations that apply in respect of [Child 1] and [Child 2], I must make new care percentage determinations that reflect the current pattern of care.  Accordingly:

    ·       Pursuant to section 50 of the Act, I determined that Mr Marek’s care percentage for [Child 1] is 43% and his care percentage for [Child 2] is 47%; and

    ·       Pursuant to section 50 of the Act, I determined that Ms Guerra’s care percentage for [Child 1] is 57% and his care percentage for [Child 2] is 53%.

    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 3 December 2018.

12. As I have arrived at a different decision than the one made by the objections officer, I decided to set aside the decision under review and substitute my own decision, below.

DECISION

The tribunal set aside the decision under review and, in substitution, decided that:

• Mr Marek’s care percentage for [Child 1] is 43% and his care percentage for [Child 2] is 47%; and

• Ms Guerra’s care percentage for [Child 1] is 57% and her care percentage for [Child 2] is 53%; and

  These percentages apply to the child support assessment from 3 December 2018.