Zamorano and Zamorano (Child support)

[2021] AATA 1295

Zamorano and Zamorano (Child support) [2021] AATA 1295 (1 March 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC020216

APPLICANT:  Mr Zamorano

OTHER PARTIES:  Child Support Registrar

Ms Zamorano

TRIBUNAL:Member M Baulch

DECISION DATE:  1 March 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – whether it is appropriate to consider daytime care – appropriate to consider daytime care – existing percentage of care determinations 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 [Child 1], who was born in 2008.

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. Mr Zamorano and Ms Zamorano are [Child 1]’s separated parents.  Since 19 November 2012 Services Australia (previously known as the Department of Human Services) – Child Support (Child Support) has made assessments under which Mr Zamorano is liable to pay child support to Ms Zamorano.  Since 29 February 2016 those assessments have been based upon Mr Zamorano having 38% care of [Child 1] and Ms Zamorano having 62% care.

4. On 6 March 2020, Ms Zamorano advised Child Support that there had been a change in the care arrangements for [Child 1].  The matter was considered by a Child Support employee who decided, on 6 May 2020, that there should be a change to the care percentages applying in the child support assessment.  The officer decided that from 6 March 2020:

   ·      Mr Zamorano’s percentage of care for [Child 1] should be recorded as 14%; and

   ·      Ms Zamorano’s percentage of care should be recorded as 86%;

   (the decision under review).

5. Mr Zamorano objected to that decision and, on 19 October 2020, that objection was disallowed.  Mr Zamorano has now applied to this tribunal for an independent review of Child Support’s decision.

6. A hearing into the application for review was held by the tribunal on 1 March 2021. Mr Zamorano and Ms Zamorano both discussed the application for review with the tribunal by conference 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 Child Support pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (190 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 what should be the care percentages applying to the child support assessment in respect of [Child 1]?

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.  Since 29 February 2016 the percentages of care that have applied in the child support assessment have recorded Mr Zamorano as having 38% care of [Child 1] and Ms Zamorano  as having 62% care. 

2. 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.

3. In this case, the parents had a written agreement, dated 25 February 2014, as to the care arrangements of both their children, including [Child 1].  However, the evidence was that this agreement had not been followed since 2016. I concluded that the care arrangement did not apply in 2020.  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.

4. On 6 March 2020, Ms Zamorano told child support that Mr Zamorano had care of [Child 1] for 51 nights per year.

5. At hearing, Mr Zamorano disputed that there should be a change in the care percentages applying in the child support assessment; he submitted that the care percentages should remain unchanged.  However, the evidence suggests that [Child 1] spends approximately half of the school holidays with Mr Zamorano, and had no overnight stays during school terms, but would spend most of each second Saturday and Sunday with Mr Zamorano.

6. While section 54A of the Act says that care may be determined by the number of nights a person has care of a child during a care period, the Act does not preclude care being determined by a method other than nights in care.  Child Support’s policy on when determining care by other than by nights is appropriate states, in the Child Support Guide at 2.2.1:[2]

   [2] The Child Support Guide, Guides to Social Policy Law, the Department of Social Services, version 4.54, can be found at align="left">Care other than in nights

   Generally, the number of nights a person cares for a child will be the best measure of their percentage of care. However, there may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child. For example, one parent may provide care every night while the other parent provides care from 8am to 6pm every weekday.

   In such cases, at the request of a parent or non-parent carer, the number of hours of care may be calculated for each carer in determining the pattern of care and then converted into a care percentage. The Registrar will take into account the information from each parent or non-parent carer about the care they provide and why they think nights or hours is the better measure of care.

   …

   Even where a determination based on the hours of care that a person provides might result in a different percentage of care to a determination based on the nights of care, it may still be more appropriate to use nights of care as the best measure of care that the person provides.

   If a person has some overnight care and a small amount of additional 'daytime' care that is not associated with an overnight stay, it may still be more appropriate to use a care percentage calculation based on nights. A decision as to whether nights are an appropriate basis for a care percentage determination will depend on the particular circumstances of the case.

   …

7. Mr Zamorano submitted that his weekend care should be considered, even though [Child 1] did not stay overnight.  Ms Zamorano did not dispute that Mr Zamorano’ weekends of care were relevant when determining the pattern of care occurring in this case.

8. I determined that the best measure of the care provided in this case should include the amount of care given by Mr Zamorano to [Child 1] on weekends during term time.

9. The evidence as to the number of hours [Child 1] would spend with Mr Zamorano on weekends during term time was not consistent.  Ms Zamorano stated that [Child 1] would spend the day, 9am to 7 pm, with Mr Zamorano on these days.  Mr Zamorano’s evidence was that [Child 1] would frequently arrive after 9 am, and sometimes not until lunchtime.  For present purposes, I accepted that [Child 1] would spend at least six hours in Mr Zamorano’s care on any Saturday or Sunday on which she visited him during term times.

10. I therefore found that Mr Zamorano had care of [Child 1] for:

    ·      Half of school holidays – 42 days; and

    ·      Weekends during term time – 2 days per fortnight for six hours, equivalent to 240 hours or 10 full days;

    A total of 52 days per year.

11. Applying the rounding rules in section 54D of the Act (percentages greater than 50 are rounded up and percentages less than 50 are rounded down), this equates to a percentage of care for [Child 1] of 14% for Mr Zamorano and 86% for Ms Zamorano.

12. Section 54F of the Act provides that an existing care percentage decision must be revoked if Child Support 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.

13. 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 the care changing from 38%/62% to 14%/86% would result in a change in the cost percentages applying for [Child 1] in the child support assessment.  Therefore, the existing percentages of care (38%/62%) must be revoked.

2. Subsection 54F(3) of the Act prescribes when a care percentage revocation takes effect.  If Child Support 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.

3. Ms Zamorano advised Child Support on 6 March 2020 that the care arrangements for [Child 1] had changed from that date.  As Child Support was notified within 28 days of the change in care occurring, the existing care percentage determinations are revoked from the date before the change in care occurred, that is 5 March 2020.

4. As I have revoked the existing care percentage determinations that apply in respect of [Child 1], 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 Mr Zamorano’s percentage of care for [Child 1] is 14%.

   ·      Pursuant to section 50 of the Act, I determined that Ms Zamorano’s percentage of care for [Child 1] is 86%.

   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 6 March 2020.

5. Having arrived at a decision that is identical to the decision under review I therefore, for these reasons, affirmed the decision under review.

DECISION

The decision under review is affirmed.