Medina and Hernandez (Child support)

[2023] AATA 2954

Medina and Hernandez (Child support) [2023] AATA 2954 (5 July 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/BC025528

APPLICANT:  Mr Medina

OTHER PARTIES:  Child Support Registrar

Ms Hernandez

TRIBUNAL:Member F Staden

DECISION DATE:  5 July 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 omitted 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. Mr Medina and Ms Hernandez are the separated parents of [Child 1], born 2004, [Child 2], born 2006, and [Child 3], born 2012 (the children). There has been a child support assessment in this case from 13 March 2006, with Mr Medina the parent liable to pay child support. Ms Hernandez opted for collection of child support by Services Australia – Child Support (Child Support) from 7 May 2018.

2. There is no written agreement between Mr Medina and Ms Hernandez about care arrangements for the children. From 4 October 2010 for [Child 1] and [Child 2] and from 18 April 2017 for [Child 3], Mr Medina’s care percentage was recorded as 0% and that of Ms Hernandez as 100%.

3. On 27 June 2022, Mr Medina informed Child Support that from 14 July 2021 his care percentage for the children was 22% and that of Ms Hernandez was 78%. Mr Medina’s care percentage was based on his having care of the children two nights a fortnight during school terms and half of the school holidays.

4. On 14 July 2022, Ms Hernandez informed Child Support that there had been no consistent change in the pattern of care for the children from 14 July 2021 and on 21 July 2022, 4 August 2022 and 8 August 2022 she provided evidence in relation to this.

5. On 7 September 2022, Child Support decided to refuse Mr Medina’s application for a change in the care percentages used in the assessment from 14 July 2021.

6. On 14 September 2022, Mr Medina lodged an objection to the 7 September 2022 decision.

7. On 5 January 2023, an objections officer disallowed Mr Medina’s objection.

8. On 31 January 2023, Mr Medina applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) for review of the objections officer’s decision. 

9. A hearing was held on 5 July 2023. Mr Medina gave sworn evidence by MS Teams audio. In response to a request from Ms Hernandez, the tribunal gave Ms Hernandez permission not to appear at hearing while remaining a party to the proceedings. At hearing, the tribunal had before it documents provided by Child Support (226 pages), copies of which were sent to all parties before the hearing.

10. Relevant evidence before the tribunal is referred to in the consideration below.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Assessment Act). The tribunal also had regard to the Child Support Guide, the Australian government’s online technical and policy guide to the administration of the child support scheme.

2. Child Support, acting for the Child Support Registrar, generally makes child support assessments using a statutory formula in Part 5 of the Assessment Act. This formula contains a number of elements called the particulars of the assessment. They include a care percentage and a cost percentage for each parent or non-parent carer in relation to each child.

3. Child Support decides care percentages in line with sections 49 to 54L of the Assessment Act. These provisions require Child Support to decide a care percentage for each parent or non-parent carer when first making a child support assessment and to revoke and remake those decisions in specific circumstances.

4. Sections 49 and 50 of the Assessment Act require Child Support, or here the tribunal, to determine the likely pattern of care for a child during a care period that is considered appropriate, usually 12 months. A care period begins on the day the actual care of a child began or changed and the same care arrangements are assumed to apply for the care period unless Child Support or Centrelink are informed otherwise.

5. The concept of care is not defined in child support legislation. In Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959 the Court stated:

   In my view, in determining whether and to what extent a person has care of a child for the purposes of the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988, it is necessary to consider the following:

   a. To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extracurricular activities?

   b. To what extent does the person make arrangements for others to meet the needs of the child?

   c. To what extent does the person pay for the costs of meeting the needs of the child?

   d. To what extent does the person otherwise provide financial support for the child?

   e. To what extent does the child provide for his or her own needs or have those needs met from another source?

   f. To what extent is the child financially independent or financially supported from another source?

6. The key issue to arise in this case is:

   ·     Did Mr Medina have a likely pattern of care for the children from 14 July 2021?

CONSIDERATION

Did Mr Medina have a likely pattern of care for the children from 14 July 2021?

1. Mr Medina dated his increased percentage of care for the children from 14 July 2021 because that was when he moved alone into a three-bedroom rental property. Before this he was living with another person in accommodation that was unsuitable for the children.

2. Mr Medina said that he had text evidence on his phone about when the children had stayed with him from January 2022. He had deleted such evidence for the period from 14 July 2021 to December 2021, making it difficult to establish what nights of care he provided for the children in the approximately six months after his declared date of care change.

3. Mr Medina reported that his intention was to provide care for the children for two nights a fortnight in school terms and half of the school holidays from 14 July 2021. The tribunal discussed with Mr Medina the various reasons why this new pattern of care was not established. These included:

   ·     Mr Medina does shift work in [an] industry. During the pandemic, his work pattern was disrupted making it hard to organise care. Additionally, the nature of his work meant that he had frequent contact with people from other places, increasing his risk of being infected by the Covid-19 virus and of passing that virus on to the children. Mr Medina told the tribunal that he was very concerned about his children’s safety at this time and limited his care accordingly.

   ·     Mr Medina had significant surgery post 14 July 2021 which restricted his ability to drive to collect the children and take them to various places while in his care, for example, to school sports. Although Ms Hernandez sometimes dropped the children off, this was not always possible and so Mr Medina missed planned care events.

   ·     Not all the children always wanted to stay with Mr Medina. One, two or three of the children might come to stay and they might each stay for different lengths of time. Mr Medina said that he wanted to be flexible in response to the children’s wishes.

4. The tribunal had no doubt that Mr Medina provided care for the children in the period from 14 July 2021. However, as Mr Medina acknowledged at hearing, there was no likely pattern of care for any of the children established from that date and it was in any case unclear whether the nights of care provided for each child would be such as to impact that child’s child support assessment.

5. In the absence of a changed pattern of care from 14 July 2021, the tribunal found that there was no basis to revoke the existing care percentages under any of the relevant provisions of the Assessment Act.

DECISION

The decision under review is affirmed.