Sosa and Sosa (Child support)

[2019] AATA 5204

Sosa and Sosa (Child support) [2019] AATA 5204 (26 August 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2019/MC016790 & 2019/MC016823

APPLICANT:  Mr Sosa

OTHER PARTIES:  Child Support Registrar

Ms Sosa

TRIBUNAL:Member M Baulch

DECISION DATE:  26 August 2019

DECISION:

The tribunal set aside the decisions of the objections officer made on 18 May 2019 and, in substitution, decided that Mr Sosa’s objection to the decision about care percentage determinations, made on 10 July 2018, is disallowed.

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 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. 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. Mr Sosa and Ms Sosa are the separated parents of two children, who were born in 2006 and 2008.  Since 12 June 2007 the Department of Human Services – Child Support (the Department) has made administrative assessments of child support under the Act.  From 1 January 2012 those assessments have been determined on the basis that Mr Sosa had 31% care of the children and Ms Sosa had 69% care.

3. On 4 May 2018, Ms Sosa advised the Department there had been a change to the care arrangements for the two children, such that she had 100% care of both children since 7 February 2018.  That information was considered by a departmental employee, who decided on 10 July 2018 that the care percentages applying to the child support assessment, with effect from 4 May 2018, should record Mr Sosa as having 0% care of the children and Ms Sosa as having 100% care.

4. On 11 January 2019, Mr Sosa was recorded as making an objection to that decision, and on 18 May 2019 that objection was allowed.  The objections officer decided that there should be care percentages that recorded Mr Sosa as having 31% care, and Ms Sosa as having 68% care for the period 4 May 2018 to 16 May 2018, and Mr Sosa as 0% care and Ms Sosa as 100% care from 17 May 2018 (the care percentage decision),  However, because Mr Sosa did not make his objection until 11 January 2019, the date of effect of the decision was 11 January 2019 (the date of effect decision), meaning the care percentage decision had no effect.  Mr Sosa has now applied to this tribunal for an independent review of the Department’s decisions.

5. A hearing into the application for review was held by the tribunal on 26 August 2019. Mr Sosa and Ms Sosa both participated in the hearing by conference telephone and both gave sworn evidence during the hearing. A representative of the Child Support 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 (383 pages), copies of which both 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 whether or not there should be a change to the care percentages applying to the child support assessment in respect of Mr Sosa’s and Ms Sosa’s two children, and if so, from when the new care percentages should apply.

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 their child during a care period.  Section 54A of the Act provides that the extent of care that a person has 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.  This provision does not preclude care being determined by having regard to matters other than nights in care in the particular circumstances of a case. 

2. Since 12 June 2007 the assessment of child support had been determined on the basis that Mr Sosa had 31% care of the children and Ms Sosa had 69% care.  The evidence indicates that these percentages of care coincided with court orders that applied since 11 November 2009.

3. There is no dispute that from 7 February 2018 Mr Sosa had no care of the two children, he says, because Ms Sosa withheld the children from him.  Ms Sosa advised the Department of this on 4 May 2018.

4. There is also no dispute that Mr Sosa contacted his lawyer in an attempt to have the orders dated 11 November 2009 enforced.  However, on 2 May 2018 an interim parenting order was made by the Federal Circuit Court of Australia which suspended the orders of 11 November 2009.  Under the Interim Orders, Mr Sosa was able to spend time with the two children, but the orders did not provide for overnight care.

5. Usually, the Department will determine a pattern of care based upon the extent of the actual care that each parent has of their child. However, section 51 of the Act says that a care determination may be made (known as an “interim determination”) if a care arrangement, such as a court order, is not being complied with and the parent with reduced care takes “reasonable action” to have the written parenting plan complied with.   The term care arrangement is defined in section 5 of the Act as having the same meaning as in the A New Tax System (Family Assistance) Act 1999.   Section 3 of that Act defines the term care arrangement to include a court order.

6. The Department’s objections officer has applied this provision to make an interim determination for the period 4 May 2018 to 16 May 2018, by reference to the care arrangement set out in the orders of 11 November 2009.  However, paragraphs 51(1)(b) and (c) of the Act provides that the provision only applies if:

   (b)a care arrangement applies in relation to the child; and

   (c) the Registrar is satisfied that the actual care of the child that the responsible person has had, or is likely to have, during the care period does not comply with the extent of care of the child that the person should have had, or is to have, under the care arrangement during that period (which may be nil).

   As at 4 May 2018, the day from which a potential interim determination would apply, the care arrangement that applied was the interim orders dated 2 May 2018, and there is no dispute that those orders were being complied with. I consequently found that section 51 of the Act has no application in this case.

7. According to section 54F of the Act, an existing care percentage decision must be revoked if the Department is notified, or 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%

Having regard to section 55C of the Act, I was satisfied that this change to the care arrangements would change the cost percentage in the child support assessment.  Therefore, the existing care determinations for the children must be revoked.

1. 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, where the care changes prior to 1 July 2018 and 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.

2. The care arrangements applying for the two children changed on 7 February 2018, and Ms Sosa advised the Department of that change on 4 May 2018, which is more than 28 days later.  Therefore, the existing care determinations are to be revoked from 3 May 2018.

3. As I have revoked the existing care percentage determinations that apply in respect of Mr Sosa’s and Ms Sosa’s two children, 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 Sosa’s care percentage for the children is 0%; and

   ·       Pursuant to section 50 of the Act, I determined that Ms Sosa’s care percentage for the children is 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 4 May 2018.

4. Essentially, the decision made on 10 July 2018 was correct, and Mr Sosa’s objection to that decision should have been disallowed. A date of effect of a decision on objection is only relevant when the decision is changed as a result of the objection (see section 87AA of the Child Support (Registration and Collection) Act 1988).  As I have found that the original decision was correct, and the objection should not have been allowed, the date of effect of the decision of the objections officer is nugatory.

5. Mr Sosa is unhappy that he is required to pay child support for the period 7 February 2018 to 3 May 2018 when, in his submission, Ms Sosa withheld care of the children from him, in contravention of the court orders, without justification.  Unfortunately, the child support law allows me no discretion to take those concerns into account.

6. I therefore decided to set aside the decisions under review and substitute my own decision, which is set out below.

DECISION

The tribunal set aside the decisions of the objections officer made on 18 May 2019 and, in substitution, decided that Mr Sosa’s objection to the decision about care percentage determinations, made on 10 July 2018, is disallowed.