Del Rosario and Del Rosario (Child support)

[2020] AATA 3654

Del Rosario and Del Rosario (Child support) [2020] AATA 3654 (14 July 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC019136

APPLICANT:  Mrs Del Rosario

OTHER PARTIES:  Child Support Registrar

Mr Del Rosario

TRIBUNAL:Member S Letch

DECISION DATE:  14 July 2020

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that care for [Child 1] from 31 January 2020 should be recorded as 83% to Mrs Del Rosario and 17% to Mr Del Rosario.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made - 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 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

1. Mrs Del Rosario and Mr Del Rosario are the parents of [Child 1], [Child 2] and [Child 3]. This matter is only concerned with [Child 1]’s recorded care.

2. Care for [Child 1] was recorded by the Child Support Agency (CSA) as 50% to each of the parents when, on 31 January 2020, Mrs Del Rosario reported Mr Del Rosario’s care had reduced as he had moved away. On 18 February 2020, the CSA decided to record care as 83% to Mrs Del Rosario and 17% to Mr Del Rosario from 29 January 2020.

3. Mr Del Rosario objected to the decision; on 19 May 2020, an objections officer allowed the objection, making the following observations:

   Mr Del Rosario has provided a copy of the text message between Mrs Del Rosario and himself regarding the children spending the April 2020 school holidays with himself along with a list of the times he has spent with [Child 1] from 7 February 2020 to 25 March 2020.

   Mrs Del Rosario has not participated during the objection process and based on the evidence provided by [Mr Del Rosario] we cannot be satisfied that a change to the pattern of care occurred for [Child 1] from 29 January 2020. [Child 1] is attending a boarding school closer to where [Mr Del Rosario] resides and no evidence has been received from either [Mrs Del Rosario] or [Mr Del Rosario] to show who is providing a higher level of financial or emotional support for [Child 1].

   Therefore, we have made the decision to refuse to reflect the care for [Child 1] as 83 per cent to
   [Mrs Del Rosario] and 17 per cent to [Mr Del Rosario] from 29 January 2020.

   The care for [Child 1] will remain as 50 per cent to [Mrs Del Rosario] and 50 per cent to [Mr Del Rosario] from 23 April 2019.

4. Mrs Del Rosario now seeks a review by this Tribunal. Mrs Del Rosario and Mr Del Rosario participated in the Tribunal’s hearing by conference telephone.

5. Mrs Del Rosario told the Tribunal that [Child 1] is at [College] (he started boarding at the beginning of 2020); she has paid all of his school fees (including uniforms, food and all related expenses). Mr Del Rosario makes no contribution to those fees. Mrs Del Rosario said that as Mr Del Rosario was not in favour of [Child 1] boarding, she has accepted responsibility for all fees. The total fees are around $20,000 per year (she said she sets aside around $1,000 per fortnight for that purpose). Mrs Del Rosario said that she also gives [Child 1] additional money for groceries to ensure he has a “good diet” (as does Mr Del Rosario). Mrs Del Rosario acknowledged that Mr Del Rosario pays for [Child 1]’s [Sport] fees, and pays for a meal every second Sunday. As a result of COVID-19, Mrs Del Rosario said there was a change where [Child 1] stayed with Mr Del Rosario for a period of time as it was easiest for him to do that.

6. Mr Del Rosario told the Tribunal that if Mrs Del Rosario “had not sent [Child 1] 400 kilometres away” he would not have moved away and care would have continued to be shared on a “week about” basis in accordance with his work schedule. Mr Del Rosario accepted he has [Child 1] for 65 nights a year during school holidays. Mr Del Rosario said that in addition to his regular time with [Child 1] every second Sunday, he has on occasion picked him after school for medical appointments, and taken him to local business to obtain some work experience. Mr Del Rosario said that care should remain recorded as “50/50”.

7. The Tribunal understood Mr Del Rosario’s position in respect of his disagreement with [Child 1] starting to board, and his evidence that if that had not occurred, he would not have moved away and he would still be having “50/50” care. However, the Tribunal must deal with the reality of the care arrangements, and not a hypothetical scenario.

8. The starting point is that care is calculated by reference to nights in care. There is no dispute that the pattern, or likely pattern, of care for [Child 1] as of the end of January 2020 was that Mr Del Rosario had [Child 1] for 65 nights during school holidays.

9. The Tribunal found both Mrs Del Rosario and Mr Del Rosario credible witnesses. Their evidence about [Child 1]’s care arrangements, and financial arrangements, was consistent.

10. The question that must be determined is how to record [Child 1]’s care when he is at boarding school.  The Child Support Guide, at 2.2.1, provides the following guidance:

    Older children living away from home

    Generally, older children who live independently and separately from their parents or carers provide for many of their own needs. This may include meeting their own ongoing daily needs (such as meal preparation, transport, socialising, etc.) as well as making their own decisions about their daily activities, schooling and health issues. Therefore, it may be difficult to establish whether a person provides care for an older child who lives separately from that person.

    Where a person provides substantial financial support to an older child living away from home, the Registrar will generally consider that financial support as an indicator that the person is continuing to provide care for the child. The support can be in relation to daily costs such as food, accommodation and transport, and/or longer term costs such as school fees, paying for airfares home for holidays, clothing, health and dental care, etc.

    While financial support is often a key factor in determining whether a person cares for a child who lives away from home, it will not always be the sole determinant. In cases where the financial support provided is limited, and other factors exist that suggest that the person continues to care for the child, the Registrar will consider whether the person is actively involved in major decisions relating to the child. For example, decisions relating to the child's health, schooling, relationships, career, etc. may be indicators that the person continues to provide care for the child.

11. Both Mrs Del Rosario and Mr Del Rosario have provided support for [Child 1]. However, inescapably, the vast burden for [Child 1]’s living costs (including tuition fees) are being borne by Mrs Del Rosario. In the Tribunal’s assessment, reflecting [Child 1]’s time at boarding school in the calculation of Mrs Del Rosarios care is an appropriate reflection of the support she provides. Similarly, the Tribunal considers recording Mr Del Rosario’s care as 17% by reference to his school holiday care is an adequate reflection of his care in the circumstances. [1]

    [1] The Tribunal observes that the child support assessment remains the same if Mr Del Rosario’s care is recorded anywhere in the band of 14% to 34%; even if, for example, Mr Del Rosario’s care was increased to include his regular Sunday contact and other contact which increased recorded care to up to 34%, there would be no impact on the assessment.

12. The Tribunal observes that any later changes to the pattern of care (for example, alternative COVID-19 arrangements) are the subject of separate notifications and separate decisions not before the Tribunal in this review.

13. The Tribunal is satisfied that the existing care determination should be revoked and that the recorded pattern of care should be changed from 31 January 2020 (the date of contact, and when the pattern should be regarded as having changed) to record [Child 1]’s care as 83% to Mrs Del Rosario and 17% to Mr Del Rosario. As this is a different conclusion to the objections officer, the decision under review will be set aside.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that care for [Child 1] from 31 January 2020 should be recorded as 83% to Mrs Del Rosario and 17% to Mr Del Rosario.