Parekh and Parekh (Child support)

[2020] AATA 2137

Parekh and Parekh (Child support) [2020] AATA 2137 (6 May 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/MC018316

APPLICANT:  Ms Parekh

OTHER PARTIES:  Child Support Registrar

Mr Parekh

TRIBUNAL:Member M Baulch

DECISION DATE:  6 May 2020

DECISION:

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

• Ms Parekh’s care percentage for [the child] is 30% from 12 February 2019; and

• Mr Parekh’s care percentage for [the child] is 70% from 26 June 2019.

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 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 2001.

2. The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable by one separated parent to the other.  It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes, the number and ages of their children and the percentages of care. 

3. Ms Parekh and Mr Parekh are [the child’s] separated parents.  Since 18 January 2019 the Department of Human Services, now known as Services Australia – Child Support (the Department) has made assessments under which Mr Parekh is liable to pay child support to Ms Parekh.  Since 18 January 2019 those assessments have been based upon Ms Parekh having 51% care of [the child] and Mr Parekh having 49% care.  The liability has now ended upon [the child] turning 18 years of age on 29 June 2019.

4. On 26 June 2019, Ms Parekh advised the Department that there had been a change in the care arrangements for [the child].  The matter was considered by a departmental employee who decided, on 6 September 2019, that there should be a change to the care percentages applying in the child support assessment.  The officer decided that:

   ·      Ms Parekh’s percentage of care should be recorded as 22%, with effect from 26 June 2019; and

   ·      Mr Parekh’s percentage of care for [the child] should be recorded as 78%, with effect from 12 February 2019;

   (the decision under review).

5. Ms Parekh objected to that decision and, on 20 January 2020, that objection was disallowed.  On 30 January 2020, Ms Parekh 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 6 May 2020.  Ms Parekh and Mr Parekh both discussed the application for review with the tribunal by conference telephone and both gave evidence under affirmation during the hearing.  A representative of the Child Support Registrar (the Registrar) did not participate in the hearing. 

7. 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 (216 pages), copies of which both parties confirmed they had received prior to the tribunal hearing.  The tribunal also had regard to additional material lodged by Mr Parekh, labelled folios B1 to B48.

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. Part 5 of the Act provides that the Registrar must make an administrative assessment of child support in accordance with the statutory formula that is set out in that Part.  The statutory formula requires that there be a determination as to the percentage of care given by each parent in respect of each child to whom the child support assessment relates.

2. 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 18 January 2019 the percentages of care that have applied in the child support assessment have recorded Ms Parekh as having 51% care of [the child] and Mr Parekh as having 49% care.  This reflected the fact that the parents were living as separated under one roof.  On 12 February 2019, Mr Parekh moved out of the family home.

3. Section 54F of the Act provides that an existing care percentage decision must be revoked if the Department is notified, or otherwise becomes aware, that the 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 explains how to determine a parent’s cost percentage based upon their percentage of care for their children.

4. 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%

1. [The child] is at boarding school during the week and spends alternate weekends, and half the school holidays, with each of his parents.  Ms Parekh stated that her role has historically been as the primary carer of her and Mr Parekh’s children, she has provided most of the emotional support to [the child], she is the principal contact for the boarding school and liaises with [the child’s] teachers.  Ms Parekh submitted that she provides at least 70% care for [the child].

2. Mr Parekh’s evidence was that he pays for [the child’s] school fees and provides nearly all of the financial support for [the child].  He stated that he also provided emotional support for [the child] and he feels that the percentages of care determined by the Department are correct.

3. Unless an interim care determination applies under section 51 of the Act, the Registrar will determine the pattern of care based upon the extent of the actual care that a parent has, or is likely to have, of their child during a care period.  Section 54A of the Act says that the Registrar, or this tribunal, may determined the actual care a parent has of their child based upon the number of nights the child is likely to be in that parent’s care.  Given that [the child] spends week nights at boarding school, it was my view that nights in care was not the most appropriate method of determining the extent to which Ms Parekh and Mr Parekh provide care to [the child].

4. I noted that the term “care” is not defined in the child support legislation. I did however, have regard to the decision of Federal Magistrate Hughes (as she then was) in Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959, where it was stated:

   53. Given the lack of a relevant statutory definition of “care” of a child, all parties requested that the Court provided some guidance in relation to the matters that should be taken into account in considering whether and to what extent the first respondent continued to provide care for the child the subject of these proceedings.

   …

   56. In my view, in determining whether and to what extent a person has care of a child for the purpose 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 extra curricular 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?

5. Both parents provide [the child] with accommodation, food, emotional support, supervision etc, when he is in their care during weekends and school holidays.  During school terms, Mr Parekh pays for [the child’s] boarding expenses which covers his living expenses during the week.  There is evidence that both parents meet other ad hoc expenses related to [the child].  Ms Parekh is the primary contact for [the child] while he is at school.

6. I have balanced factors such as financial support, emotional support and time spent with each parent. Having considered these factors, I decided that the pattern of care applying for [the child] demonstrates that Ms Parekh has 30% care of [the child] and Mr Parekh has 70% care of [the child].

7. Having regard to the cost percentages set out in section 55C of the Act, I was satisfied that from 12 February 2019, being the date Mr Parekh left the marital home, there has been a change to the care occurring for [the child] and that change does result in a change to the cost percentages used in the child support assessment.  Therefore, the existing care percentages (49%-51%) must be revoked.

8. 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.  However, if notification occurs more than 28 days after the change in care arrangements occurs, the revocation of the care determinations takes effect for each parent as follows:

   ·       If the parent’s care of the child has increased – the day before the Registrar is notified, or otherwise becomes aware, of the change in care; or

   ·       If the parent’s care of the child has reduced – the day before the change of care occurred.

9. Ms Parekh advised the Department that the care for [the child] had changed from 12 February 2019 on 26 June 2019, which is more than 28 days later.  As Ms Parekh had reduced care, her care percentage determination is revoked from the day before the change in care; that is from 11 February 2019.  As Mr Parekh had increased care, his care percentage is revoked from the day before the Department was advised of the change, that is 25 June 2019.

10. 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 50 of the Act, I determined that Ms Parekh’s percentage of care for [the child] is 30%.

    ·       Pursuant to section 50 of the Act, I determined that Mr Parekh’s percentage of care for [the child] is 70%.

    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 12 February 2019 for Ms Parekh and from 26 June 2019 for Mr Parekh.

11. I note that even though I have determined different percentages of care from those determined by the Department, my decision has no effect on the child support assessment because the cost percentages will remain the same even when my care percentages are applied.  Nonetheless, as I have arrived at a different decision from the Department I set aside that decision and substituted my own.

DECISION

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

• Ms Parekh’s care percentage for [the child] is 30% from 12 February 2019; and

• Mr Parekh’s care percentage for [the child] is 70% from 26 June 2019.