Stone and Lamalfa (Child support)

[2020] AATA 2138

Stone and Lamalfa (Child support) [2020] AATA 2138 (29 April 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/MC018602

APPLICANT:  Ms Stone

OTHER PARTIES:  Child Support Registrar

Mr Lamalfa

TRIBUNAL:Member M Baulch

DECISION DATE:  29 April 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 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. 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. 

2. Ms Stone and Mr Lamalfa are the separated parents of two children.  Since 30 October 2015, the Department of Human Services, now known as Services Australia – Child Support (the Department), has made assessments of child support in respect of the children.  Since 7 December 2018, those assessments had been based upon Ms Stone having 86% care of the children and Mr Lamalfa having 14% care.

3. On 8 April 2019, Ms Stone contacted the Department to discuss the care arrangements taking place for the children.  On 11 May 2019, the matter was considered by a departmental employee who decided that there should be no change to the care percentages applying in the child support assessment for the children (the decision under review).

4. On 10 December 2019, Ms Stone was recorded as having objected to that decision and, on 10 March 2020, that objection was disallowed.  Ms Stone 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 29 April 2020. Ms Stone and Mr Lamalfa both discussed the application for review with the tribunal by telephone and both gave sworn 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, which were labelled folios 1 to 202. 

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 there should be a change to the care percentages applying in the child support assessment in respect of Ms Stone’s and Mr Lamalfa’s children.

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 children.

2. A pattern of care is generally determined over a “care period”, which is a period that the Registrar, or this tribunal, considers to be appropriate having regard to all the circumstances of the matter (section 50 of the Act).  The Department’s policy in this regard, as set out at 2.2.1 of the Child Support Guide (the Guide), is that a care period is generally a 12-month period starting from the day on which the actual care for a child changed.[1] 

   [1] Department of Social Services, Guides to Social Policy Law, Child Support Guide, version 4.47 – can be found at >

   I am not bound by the Department’s policy, such as that set out in the Guide, but in the interests of consistency in decision making I would generally apply such policy if not inconsistent with the purposes and objects of the Act.[2]  I considered the policy to be unobjectionable in this case and therefore considered it should be applied for the purposes of determining a care period in this matter. 

   [2] Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39

3. Since 7 December 2018, the child support assessments applying in respect of Ms Stone and Mr Lamalfa have been based upon Ms Stone having 86% care of the children and Mr Lamalfa having 14% care.

4. Unless a care arrangement applies, the care arrangement is not being complied with and a parent is taking action to enforce that care arrangement or make a new care arrangement, the Registrar will determine the pattern of care based upon the extent of the actual care that a parent has of their child.  A care arrangement is a formal arrangement about the care of a child or children and includes a written agreement, court order or parenting plan.[3]  In this case, I considered the actual care taking place.

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

5. 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 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. 

6. 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 care arrangements for Ms Stone’s and Mr Lamalfa’s children are set out in a court order, dated 27 November 2018, that specifies that Mr Lamalfa has two nights of care per week during term time, and care for half the school holidays.  There are also specific arrangements for Christmas Day, Easter, Mother’s Day, and the children’s birthdays.

2. The court order prescribes that Mr Lamalfa has more than 52 nights (or 14%) care of the children.  However, it is not my role to review the care percentages that have applied since 7 December 2018 and I noted that there is no impact on the assessment, so long as Mr Lamalfa has care between 52 nights and 127 nights.

3. For there to be a change to the cost percentage for either child applying for Mr Lamalfa in the administrative assessment, it would have to be demonstrated that Mr Lamalfa’s percentage of care was less than 14%; in other words he has 51 nights of care, or less, in any 12-month period.

4. Ms Stone’s evidence was that when she contacted the Department on 8 April 2019 it was because she was concerned as Mr Lamalfa had missed the first care event falling during a school holiday, in which the order provided for him to have care for half the holiday.  Ms Stone stated that she was not reporting a change in care at that time, but was merely expressing concern that the pattern of care was not being followed and was advised by the Department to keep records going forward.  Ms Stone did not dispute that as at 8 April 2019, there was still a pattern of care under which Mr Lamalfa was still having care equivalent to at least 52 nights per year.

5. The task for me is to determine whether a parent “has had, or is likely to have, a pattern of care for the child” (or no pattern of care) – see sections 49 and 50 of the Act.  I am wary of adopting an incorrect approach of reaching findings about a pattern of care solely by reference to an historical audit of what actually happened.  The child support scheme does not provide for a reconciliation or audit of care, but instead care determinations are intended to operate prospectively and indefinitely unless and until the Department is notified of a change to the pattern that will actually affect the assessment.  An objection decision, or a review by this tribunal, should not be used as a means of achieving such an audit.

6. Consequently, my consideration is a point-in-time consideration.  Was the decision, made by the Department on 11 May 2019, correct at that point in time, based on all the evidence now available?  The evidence of both parents was that at that point in time, Mr Lamalfa’s care percentage was still at least 14%. 

7. As the evidence does not demonstrate Mr Lamalfa as having care of less than 14% in respect of either child, there is no basis to revoke the existing care percentage determinations for either child under section 54F of the Act.

8. Section 54G of the Act provides that an existing care percentage determination that gives a person at least regular care of a child (that is, more than 14%, but less than 35%: subsection 5(2) of the Act) must be revoked if a person’s actual care is less than 14% despite the other parent making the child available to that person.  In this case, there is no evidence that Mr Lamalfa did not, as at 8 April 2019, have less than regular care.  I found that section 54G of the Act has no application in this case.

9. Section 54H of the Act provides that an existing percentage of care may be revoked if the actual care being provided would change a person’s care percentage recorded even though it would not change the person’s cost percentage in the child support assessment.  The reason for this discretion was set out in the Explanatory Memorandum to the Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Bill 2010, which relevantly stated:

   This discretion allows the Registrar to maintain accurate records of changes in care and, because of the alignment provisions, this assists in keeping accurate records for [family tax benefit] and child support. 

   Mr Lamalfa’s percentage of care has no impact on an entitlement to family tax benefit, unless that percentage was at least 35%.[4]  While the court order suggests that Mr Lamalfa might have more than 14% care, his level of care is not 35%.  As the level of Mr Lamalfa’s care has no impact on an entitlement to family tax benefit, I declined to exercise the discretion provided for in section 54H of the Act

   [4] See subsection 22(7) of the A New Tax System (Family Assistance) Act 1999.

10. Sections 54FA and 54HA of the Act provides discretion to suspend an existing care percentage determination, in specific circumstances, where that determination is an interim determination made for the purposes of subsection 51(4) of the Act.  As no interim determination made for the purposes of subsection 51(4) of the Act apply in this case, the discretions provided for in sections 54FA or 54HA of the Act are not enlivened.

11. I consequently found no basis to revoke or suspend the existing care percentage determinations applying in the child support assessment that record Ms Stone as having 86% care and Mr Lamalfa as having 14% care.  This means that there is no change to the care percentages that have applied in the child support assessment since 7 December 2018 and I consequently affirmed the decision under review.

12. Ms Stone explained that the Department recommended she object, and seek a review, of the decision made on 11 May 2019 to refuse to change the percentages of care in the child support assessment because this decision was preventing her from reporting a change in care in February 2019.  I identified no impediment in the Act to Ms Stone reporting a change of care occurring in February 2019, or a decision being made on such information if supported by the evidence.  This suggests to me that there are limits to the Department’s systems and processes that are the issue, and I recommend Ms Stone follow up her concerns with the Department.

DECISION

The decision under review is affirmed.