Fabian and Lloris (Child support)

[2020] AATA 586

Fabian and Lloris (Child support) [2020] AATA 586 (15 January 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC017455

APPLICANT:  Ms Fabian

OTHER PARTIES:  Child Support Registrar

Mr Lloris

TRIBUNAL:Member J Longo

DECISION DATE:  15 January 2020

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that Mr Lloris has a percentage of care of 100% for [Child 1] and a percentage of care of 60% for [Child 2] and Ms Fabian has a percentage of care of 0% for [Child 1] and a percentage of care of 40% for [Child 2] from 14 August 2018.

CATCHWORDS

CHILD SUPPORT – percentage of care – determination of the likely pattern of care from the start of the administrative assessment - 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

BACKGROUND

1.Mr Lloris and Ms Fabian are the parents of [Child 1] and [Child 2]. Mr Lloris is the parent liable to pay child support.

2.[In] September 2018, the Department of Human Services – Child Support (the Department) accepted Ms Fabian’s application for a child support assessment and determined that Ms Fabian had a percentage of care for [Child 1] and [Child 2] of 0% and that Mr Lloris had a percentage of care of 100% for [Child 1] and [Child 2] from 1 March 2018.

3.Ms Fabian contacted the Department [in] July 2019 and stated that the care determined by the Department was incorrect and that she had a percentage of care for [Child 1] and [Child 2] of 40% and that Mr Lloris had a percentage of care of 60% of [Child 1] and [Child 2] from 28 June 2018.

4.[In] September 2019, the Department disallowed Ms Fabian’s objection.

5.On 20 September 2019, Ms Fabian lodged an application with the Administrative Appeals Tribunal (the tribunal) for a review of the decision. The hearing took place on 15 January 2020. Ms Fabian and Mr Lloris attended the tribunal and gave sworn evidence. In making its decision, the tribunal took into consideration the documents (numbered 1 to 184) provided by the Department.

CONSIDERATION

6.The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act).

Has there been a change in the care of [Child 1] and [Child 2]?

7.It is not in dispute that Ms Fabian made an application for a child support assessment [in] August 2018 in relation to [Child 1] and [Child 2] which was determined by the Department [in] September 2018. The Department, after speaking to Ms Fabian and Mr Lloris, determined that Mr Lloris had a percentage of care of 100% for [Child 1] and [Child 2] from 1 March 2018.

8.Both Ms Fabian and Mr Lloris stated that there were no court orders or parenting plans regarding the care of [Child 1] and [Child 2].

9.Ms Fabian stated that Mr Lloris did not have 100% of the care of [Child 1] and [Child 2] from 1 March 2018 because Mr Lloris was living in a caravan and there was insufficient room for [Child 1] and [Child 2]. Ms Fabian stated that she had the majority of the care of [Child 1] and [Child 2] from 1 March 2018. Ms Fabian stated that [Child 1] spent time with Mr Lloris but also with her parents during this time. Ms Fabian referred to the evidence of text conversations provide to the Department between her and Mr Lloris discussing the care of the children at the time which Ms Fabian submitted showed that Mr Lloris did not have 100% care of the children from 1 March 2018.

10.Mr Lloris’s evidence confirmed that he did not have 100% care of [Child 1] and [Child 2] from 1 March 2018. He stated that he was evicted from the family home in March 2018 and moved into a cabin at the [Suburb 1] Caravan Park and then from April 2018 he bought a caravan in which he resided. He stated that when he bought the caravan, [Child 1] stayed with him the majority of the time. In regard to [Child 2], Mr Lloris stated that he had [Child 2] in his care for most weekends but not 100%. Mr Lloris stated that [in] June 2018 he took up a lease of a house in [Suburb 2] and that [Child 1] continued to stay with him. [Child 2] also moved in with him at this time and remained with him 60-70% of the time, commuting to [College] until September 2018.

11.Section 25 of the Act allows a parent to apply to the Child Support Registrar (the Registrar) for an administrative assessment of child support for the children. In this matter, the tribunal is satisfied that Ms Fabian applied [in] August 2018 for such an assessment in relation to [Child 1] and [Child 2] and that the application was validly made. Once an application has been validly made, the Registrar is required to assess the child support by determining the costs of the child and the annual rate of child support payable by a parent from the day the application is made.

12.In making a decision of the annual rate of child support payable, the Registrar must make a determination of the care percentages of both parents from the day the application is made. In this matter, the tribunal has found the application was made [in] August 2018 and therefore a determination of the care for [Child 1] and [Child 2] must be made from this date, not an earlier date.

13.Section 50 of the Act requires a determination of a percentage of care to be made where the tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period as considered to be appropriate having regard to all the circumstances. In Ms Fabian’s application, she stated that she had care of [Child 1] and [Child 2] of 100% and Mr Lloris had a percentage of care of 0% from 1 March 2018. However, the Department was required to determine the care from 14 August 2018 onwards, as this is the date on which the application for child support was made. It is clear from the oral evidence of the parties that Ms Fabian’s care from this date was not 100% for [Child 1] and [Child 2].

14.Ms Fabian stated that, based on her recollection, she had [Child 1] and [Child 2] in her care 40% of the time from 14 August 2018. Mr Lloris’ evidence was that [Child 1] was in his care 100% of the time from 14 August 2018 and [Child 2] was in his care 60-70% of the time. The tribunal has accepted Ms Fabian and Mr Lloris’ evidence in relation to the care of [Child 2] as both parties agree to the level of care being 40% and 60% respectively. In regard to [Child 1], the tribunal has preferred Mr Lloris’ evidence of the care of [Child 1] from 14 August 2018 as it has been consistent throughout the period.

15.Section 50 of the Act provides that if an application is made under section 25 and the tribunal is satisfied that a party has had, or is likely to have, a pattern of care of [Child 1] and [Child 2], the tribunal must determine the percentage of care during the care period. ‘Actual care’ may be worked out based on the number of nights the child was or will be in the care of the person (subsection 54A(1)). Accordingly, the tribunal has determined that a Ms Fabian had a percentage of care for [Child 1] of 0% and a percentage of care for [Child 2] of 40% and that Mr Lloris had a percentage of care of 100% for [Child 1] and a percentage of care for [Child 2] of 60% from the date of the application for child support on 14 August 2018.

16.The tribunal has not determined what the care for [Child 1] and [Child 2] was prior to 14 August 2018, as there was no application for child support prior to this date and as such, there is no need to assess the level of care, for the purpose of assessing the annual child support payable, prior to 14 August 2018. The Act requires the determination of the care at the date of the application, but any change of care after this date requires further determination by the Department to revoke and make a new determination of the care. No such revocation and new determination has been made by the Department and is not before the tribunal. Therefore, the tribunal is unable to consider whether there have been further changes in the care, even though Ms Fabian and Mr Lloris indicated in their oral evidence that the care has changed.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that Mr Lloris has a percentage of care of 100% for [Child 1] and a percentage of care of 60% for [Child 2] and Ms Fabian has a percentage of care of 0% for [Child 1] and a percentage of care of 40% for [Child 2] from 14 August 2018.