Allor and Ruben (Child support)

[2018] AATA 5030

Allor and Ruben (Child support) [2018] AATA 5030 (22 November 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC014928

APPLICANT:  Mrs Allor

OTHER PARTIES:  Child Support Registrar

Mr Ruben

TRIBUNAL:Member F Hewson

DECISION DATE:  22 November 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – parents separated but living under the same roof – extent of care – shared care – decision under review affirmed

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. Mrs Allor and Mr Ruben are the separated parents of [Child 1] (born December 2006) and [Child 2] (born January 2002), in respect of whom there is a child support assessment. This review is about the percentages of care for the children used in the child support assessment.

2. Mrs Allor lodged an application for a child support assessment with the Department of Human Services – Child Support (the Department) on 16 February 2018. Following contact with both parents the application was accepted from the date of lodgement. The Department determined that Mrs Allor had a percentage of care of the children of 51% and Mr Ruben had a percentage of care of 49% from 3 November 2017.

3. Mrs Allor objected to the decision that she had 51% of the care of the children and that Mr Ruben had 49% of the care. On 2 August 2018 the objection was disallowed.

4. On 31 August 2018, Mrs Allor lodged an application for review with the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal). The application was heard on 22 November 2018. The tribunal spoke to Mrs Allor by conference telephone. It also spoke to Mr Ruben by conference telephone. The Child Support Registrar did not participate in the hearing. In addition to the evidence from Mrs Allor and Mr Ruben, the tribunal also had regard to documents provided by the Department.

ISSUES

1. The relevant law in this case is in the Child Support (Assessment) Act 1989. A parent or non-parent carer’s percentage of care for a child is determined based on the care he or she is likely to provide for the child in a care period. The percentage of care is used in a child support assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they are providing for that child.

2. The issue for the tribunal to determine in this case is what percentages of care for the children should be used in the administrative assessment of child support from the commencement of the child support case.

CONSIDERATION

1. A determination of a percentage of care for a child is made under sections 49 and 50 of the Act, if the Registrar is satisfied that each person has had, or is likely to have, no pattern of care, or that the person has had, or is likely to have, a pattern of care.

2. In this case the Department determined under section 50 that Mrs Allor had a pattern of care of the children and that her percentage of care was 51%. It was also determined under section 50 that Mr Ruben had a pattern of care of the children and that his percentage of care was 51%.

3. The Department’s records show that when she made her online application for an administrative assessment of child support on 16 February 2018, Mrs Allor stated she had 50% of the care of the children. She confirmed the care arrangement when she was contacted in relation to the application on 23 February 2018. Mr Ruben agreed that the care of the children was shared. The Department recorded that both parents stated they were separated under the same roof and “50/50 care deemed”. The application for a child support assessment was accepted on that basis. On review by the objections officer Mrs Allor stated that she disagreed with the percentages of care recorded from the date of registration of the child support case. She noted that she stopped working in November 2017, while Mr Ruben was employed by [a government organisation] and also [worked] casually for [a company]. Mrs Allor asserted that she had about 80% of the care, whereas Mr Ruben had about 20% of the care. Mr Ruben disputed this assessment of his care.

4. The parties agreed that at the date of Mrs Allor’s application for a child support assessment they were separated but living under the same roof. There is no dispute that each parent provides care for the children, although it is the extent of that care that is at issue. This was discussed in detail at the hearing. In summary, Mrs Allor said:

   ·     when she completed the online application for a child support assessment she stated that she had 50% of the care of the children on advice from an officer of the Department.

   ·     She was advised that the care is deemed to be shared where the parents are separated under the same roof. It was a stressful time and she didn’t know at that time how much child support she would get.

   ·     She was not working at the time of her application and, therefore, the children were in her care for a greater proportion of the time.

   ·     Mr Ruben generally spent from about 6:00 pm to 7:30 pm with the children, which included the evening meal. She prepares the meal beforehand, because [Child 1] will only eat [specific] food. She also prepares food for [Child 1] to take to school.

   ·     Mr Ruben drives [Child 2] to the train station to get to school, but he has to go to the station himself anyway.

   ·     She does the laundry for the children and prepares [Child 1’s] clothes for the next day.

   ·     In the period under review she attended [Child 1’s] school carnival, because she was not working. Mr Ruben does not help with things like homework. She attends other school activities, such as parent/teacher meetings.

   ·     She pays for some of the groceries for the household and since April 2018 Mr Ruben has stopped contributing to the mortgage payments.

5. In summary, Mr Ruben’s evidence about the care of the children from the date of the child support assessment was as follows:

• He disagrees with Mrs Allor’s assessment of his care of the children.

• He takes [Child 2] to the train in the mornings and sometimes collects him from the station in the afternoon.

• He does help [Child 1] with her homework if she asks for his help.

• He does laundry for the children and he prepares food for them, including for [Child 1]. He did not dispute that Mrs Allor cooks for [Child 1], but he prepares the meal.

• He takes the children to appointments including the dentist.

• He has taken time off work to care for [Child 1] when she was sick.

• He has been attending a fathering project at [Child 1’s] school, attends parent/teacher meetings for the children, and attended an information session for [Child 2’s] senior school.

• He stopped contributing to the mortgage in April 2018, but he pays for the household expenses, including groceries and utilities, and for expenses related to the children, including school fees, child care fees for [Child 1], expenses for excursions, allowances and medical expenses.

1. Mrs Allor and Mr Ruben both submitted evidence to the Department in support of their position in relation to the care of the children. In relation to a table submitted by Mr Ruben, setting out his care of the children, Mrs Allor disputed his evidence, noting that Mr Ruben indicated he had care of [Child 2] on 2 July 2018, when he was on a school excursion to [the city]. Mr Ruben also disputed aspects of Mrs Allor’s evidence.  Both parties agreed that the other does spend time with the children each day, meets expenses for the children, attends school activities for the children, and takes the children to appointments as required.

2. In making its decision the tribunal had regard to the decision of Polec v Staker & Anor (SSAT Appeal) [2011] FMCAfam 959, which examined the factors to consider in determining whether and to what extent a parent or a non-parent carer has care of a child for the purposes of the child support legislation. It provides that a range of factors, including who is responsible for making arrangements for and decisions about the child’s welfare, and who is meeting the child’s costs should be considered, in addition to the accommodation arrangements and who has physical care of the child.

3. Having weighed the evidence carefully, the tribunal concluded that in the particular circumstances of this case, where the parents live under the same roof and each contributes to the daily care of the children (with one having more of the physical care and the other meeting more of the expenses), it is appropriate to assess the care as being shared. The tribunal determined under section 50, therefore, that Mrs Allor’s percentage of care of the children was 51% and Mr Ruben’s percentage of care was 49% from the commencement of the child support case on 16 February 2018.  This applies to each day in the child support period, commencing from 16 February 2018, in accordance with section 54B of the Act.

DECISION

The decision under review is affirmed.