Rosales and Child Support Registrar (Child support)

[2020] AATA 898

Rosales and Child Support Registrar (Child support) [2020] AATA 898 (12 February 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC017882

APPLICANT:  Ms Rosales

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member M Baulch

DECISION DATE:  12 February 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 – 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. 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 ages and number of children and their percentages of care.

2. Ms Rosales and Mr [A] are the separated parents of [the child].  Since 1 August 2017 the Department of Human Services – Child Support (the Department) has made assessments for a child support liability.  From 15 October 2017 the quantum of that liability has been determined based upon Ms Rosales having 49% care of [the child] and Mr [A] having 51% care.

3. On 23 May 2019 Mr [A] advised the Department that there had been a change to the care arrangements for [the child].  The matter was considered by a departmental employee who decided, on 28 June 2019, that the care percentages applying to the child support assessment from 22 May 2019 should record Ms Rosales as having 0% care of [the child] and Mr [A] as having 100% care (the decision under review).

4. Ms Rosales objected to that decision and, on 11 November 2019, that objection was disallowed.  Ms Rosales has now applied to this tribunal for an independent review of the Department’s decision.

5. A hearing into the application for review was held by the tribunal on 12 February 2020. Ms Rosales discussed the application for review with the tribunal by telephone and gave evidence under affirmation 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 section 37 of the Administrative Appeals Tribunal Act 1975 (154 pages), copies of which Ms Rosales confirmed she 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, in respect of [the child], applying to the child support assessment.

CONSIDERATION

1. 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 the children during a care period.  Since 15 October 2017, the pattern of care that has applied to the child support assessment recorded Ms Rosales as having 49% of the care of [the child] and Mr [A] as having 51%. 

2. The Department has recorded that on 23 May 2019 Mr [A] contacted the Department to advise that the care arrangements for [the child] had changed, such that he then had care of [the child] for 100% of the time.  Ms Rosales disputed that the change of care was ever intended to be permanent or that [the child] had expressed a wish to live with Mr [A].  Ultimately, those matters are not determinative of the pattern of care actually taking place.

3. Usually, the Registrar will determine a pattern of care based upon the extent of the actual care that each parent has of their child.  However, this may not apply, in certain circumstances, if a care arrangement applies and that care arrangement is not being complied with (see section 51 of the Act).  A care arrangement is a formal arrangement about the care of a child and includes a written agreement, court order or parenting plan.[1] 

   [1] See section 5 of the Act and section 3 of the A New Tax System (Family Assistance) Act 1999.

4. Ms Rosales’ evidence was that she and Mr [A] entered into a written parenting plan in 2017.  Under that plan, [the child] was to spend equal time with each parent on a three weekly basis.  Ms Rosales explained that the pattern of a three weekly changeover was difficult to manage, so after consulting with [the child], it was changed to a two week about arrangement.

5. I was satisfied that there was a care arrangement in this case.  However, that care arrangement specified a three week about pattern of care.  Although a two week about pattern of care results in the same percentages of care for each parent, I concluded that a two week about pattern of care means that the care arrangement was not being complied with prior to the change of care on 22 May 2019.  I therefore found that section 51 of the Act has no application in this case and the percentages of care should be based on the actual care taking place.

6. There is no dispute that, from 22 May 2019, Mr [A] had 100% care of [the child].

7. 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%

1. I was satisfied that Ms Rosales’ percentage of care changing, on 22 May 2019, from 49% to 0% will result in a change to the cost percentages applying in the statutory formula.  Therefore, the existing care determinations (49% to Ms Rosales and 51% to Mr [A]) must be revoked.

2. 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 22 May 2019, and Mr [A] advised the Department of that on 23 May 2019, which was within 28 days.  Therefore, the existing care determinations are revoked from 21 May 2019.

3. 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 Ms Rosales’ percentage of care for [the child] was 0%.

   ·       Pursuant to section 50 of the Act, I determined that Mr [A]’s’ 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 22 May 2019.

4. Since 28 June 2019, which is the date upon which the decision I am reviewing was made, the Department has made another care decision which reflects Ms Rosales and Mr [A] as having equal care of [the child] since 12 August 2019.  Ms Rosales stated that she believed the care returned to equal shared care earlier than 12 August 2019. 

5. Ultimately, I can only review a care percentage decision that has been the subject of a decision on an objection (see section 89 of the Child Support (Registration and Collection) Act 1988).  There is nothing to indicate that the decision to record new care percentages from 12 August 2019 has been the subject of an objection.  If Ms Rosales disagrees with this decision, she should lodge an objection against it with the Department.

6. Ms Rosales submitted that it is unfair that she was required to pay child support to Mr Rosales at the amount assessed, when she was also incurring costs relating to [the child]’s medical treatment.  Those matters are beyond the scope of this review.  However, Ms Rosales may like to consider contacting the Department to discuss in what circumstances fees paid for essential medical services for a child, during a period a person is liable to pay child support and that liability is being collected by the Department, can be credited against the liability to pay child support (section 71C of the Child Support (Registration and Collection) Act 1988).

7. Having arrived at a decision that is identical to that made by the Department on 28 June 2019, I consequently affirmed the decision under review.

DECISION

The decision under review is affirmed.