Offord and Hanley (Child support)

[2020] AATA 884

Offord and Hanley (Child support) [2020] AATA 884 (4 March 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/CC017770

APPLICANT:  Mr Offord

OTHER PARTIES:  Child Support Registrar

Ms Hanley

TRIBUNAL:Member M Baulch

DECISION DATE:  4 March 2020

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 evidence of a care arrangement in place ­– existing percentage of care determinations were correctly 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 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. This application for review is about the child support assessment applying in respect of [the Child], who was born in 2007.

2. The Child Support (Assessment) Act 1989 (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, their ages and percentages of care. 

3. Mr Offord and Ms Hanley are the separated parents of two children.  Since 25 September 2019 Mr Offord has been assessed as liable to pay child support to Ms Hanley by the Department of Human Services – Child Support (the Department).  Those assessments were determined on the basis that each parent had 50% care of [the Child].

4. On 3 September 2019, Ms Hanley advised the Department that there had been a change in the care arrangements for [the Child], with [the Child] being in her sole care from 23 August 2019.  After considering that advice a departmental employee decided, on 19 September 2019, to change the care percentages recorded in the child support assessment for [the Child] from 23 August 2019, such that Mr Offord had 0% care and Ms Hanley had 100% care (the decision under review).

5. Mr Offord objected to that decision and, on 15 October 2019, that objection was disallowed.  Mr Offord 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 4 March 2020. Mr Offord and Ms Hanley both discussed the application for review with the tribunal by conference telephone and both gave evidence during the hearing. A representative of the Child Support Registrar (the Registrar) did not participate in the hearing. The tribunal had before it relevant documents provided to it by the Department pursuant to sections 37 and 38AA of the Administrative Appeals Tribunal Act 1975 (233 pages), copies of which the parties confirmed they had received prior to the tribunal hearing. 

ISSUES

1. The statutory provisions relevant to this review application are found within the Act.

2. The issue which arises in this case is what should be the care percentages applying to the child support assessment in respect of [the Child]?

CONSIDERATION

1. Sections 49 and 50 of the Act require the Registrar, or this tribunal, to determine the likely pattern of care for a child during a period that is considered appropriate (a care period). Since 25 September 2019 the care percentages applying in the child support assessment have recorded Mr Offord as having 50% care of [the Child] and Ms Hanley as having 50% care.

2. Section 54A of the Act provides that the extent of care that a person is to have may be worked out on the number of nights that a child is likely to be in that person’s care in a care period.  

3. While care is usually based upon the actual care taking place, in certain circumstances, when a care arrangement applies and that care arrangement is not being complied with, section 51 of the Act provides for the making of an interim determination for a interim period based upon the care specified in the care arrangement, even if that is different to the care actually taking place.  Subsection 5(1) of the Act defines the term care arrangement to have the same meaning as in the A New Tax System (Family Assistance) Act 1999, in subsection 3(1) of which a care arrangement is defined to be:

   (a)  a written agreement between the parents of the child, or between a parent of the child and another person who cares for the child, that relates to the care of the child; or

   (b)  a parenting plan for the child [made under the Family Law Act 1975]; or

(c)  any of the following orders relating to the child:

(i) a family violence order within the meaning of section 4 of the Family Law Act 1975;

(ii)    a parenting order within the meaning of section 64B of that Act;

(iii)  a State child order registered in accordance with section 70D of that Act;

(iv)  an overseas child order registered in accordance with section 70G of that Act.

The Department’s policy,[1] which I accepted as being unobjectionable and consequently applied,[2] is that a written agreement exists in the following circumstances:

A written agreement exists between separated parents (or a parent and another person who cares for the child) if:

·there is a document in writing,

·the document is signed and dated by both parties, and

·both parties agree on the care arrangements for the child, which are specified in the document.

A document that acknowledges that care is occurring in a particular way does not constitute a written agreement, even if it is signed by both parties. The written agreement must indicate that the care arrangement constitutes an agreed, ongoing care arrangement for the child.

[1] Child Support Guide at 2.2.4, Guides to Social Policy Law, Department of Social Services, version 4.46, can be found at See Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

1. There is no evidence that a court order or parenting plan is in place addressing [the Child]’s care.  While Mr Offord and Ms Hanley had previously agreed to arrangements about their children’s care, Mr Offord did not dispute that there is no written and signed agreement between himself and Ms Hanley specifying the care arrangements for [the Child].  I was therefore satisfied that no care arrangement applies in this case and consequently found that the care percentages applying in the child support assessment should be based upon the actual care taking place.

2. There was no dispute that since 23 August 2019 Mr Offord has had no care of [the Child].  I therefore found that since 23 August 2019 the pattern of care that has applied in respect of [the Child] is one under which Mr Offord has 0% care and Ms Hanley has 100% care.

3. According to section 54F of the Act, an existing care percentage decision must be revoked if the Department is notified, or otherwise becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that change would alter the cost percentage used for the parent in the administrative assessment.  Section 55C of the Act contains a table that is used to work out a person’s 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%

I was satisfied that the percentage of care changing, on 23 August 2019, from 50% to 0% for Mr Offord, and from 50% to 100% for Ms Hanley, will result in a change to the cost percentages applying in the statutory formula.  Therefore, the existing care determinations (50% to Mr Offord and 50% to Ms Hanley) must be revoked.

1. Subsection 54F(3) 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.  In this case, the care changed on 23 August 2019, and Ms Hanley advised the Department of that on 3 September 2019, which was within 28 days.  Therefore, the existing care determinations are revoked from 22 August 2019.

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

   · Pursuant to section 49 of the Act, I determined that Mr Offord’s percentage of care for [the Child] was 0%.

   · Pursuant to section 50 of the Act, I determined that Ms Hanley’ percentage of care for [the Child] was 100%.

   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 23 August 2019.

3. I was consequently satisfied that from 23 August 2019 the care percentages for [the Child] recorded in the child support assessment should reflect that Mr Offord had 0% care and Ms Hanley had 100% care.  Having arrived at a decision that is identical to that of the Department I therefore, and for these reasons, decided to affirm the decision under review.

DECISION

The decision under review is affirmed.