Kingston and Child Support Registrar (Child support)

[2020] AATA 270

Kingston and Child Support Registrar (Child support) [2020] AATA 270 (14 January 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC017584

APPLICANT:  Ms Kingston

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member C Breheny

DECISION DATE:  14 January 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment –parents living under the same roof - shared care appropriate determined - 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. Ms Kingston and [Mr A] are the separated parents of [Child 1], born [in] October 2014, [Child 2], born [in] February 2017 and [Child 3], born [in] November 2018. On 28 November 2018 Ms Kingston contacted the Department of Human Services – Child Support (the Department) to lodge an application for a child support assessment, indicating that she and [Mr A] had been living separately under one roof since 27 October 2018.

2. On 30 November 2018 Ms Kingston’s application was accepted and [Mr A]’s child support liability was assessed on the basis that Ms Kingston and [Mr A] had shared care of the children (51% care Ms Kingston, 49% care [Mr A]).

3. On 4 January 2019 Ms Kingston advised that she now had 100% care of [Child 1] and [Child 2] from 22 December 2018 and on 14 January 2019 a care decision was made to this effect.

4. On 26 July 2019 Ms Kingston contacted the Department because staff from the Centrelink had told her that care for [Child 3] was recording as being 51% for Ms Kingston and 49% for [Mr A]. On 31 July 2019 Ms Kingston lodged an objection to the initial care decision made on 30 November 2018.

5. On 26 September 2019, an objections officer of the Department decided to disallow the objection. The objections officer determined that Ms Kingston and [Mr A] have had shared care of [Child 3] (51% Ms Kingston, 49% [Mr A]) since 5 November 2018.

6. On 9 October 2019, Ms Kingston applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal for an independent review of the objection decision. The application was heard on 14 January 2020. Ms Kingston attended the hearing by conference telephone and gave evidence on affirmation. [Mr A] did not apply to be a party to the review and did not participate in the hearing. A representative of the Child Support Registrar did not attend the hearing. I had before me the statement and documents provided by the Department pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, received on 29 November 2019 (documents numbered 1-74).

ISSUES and CONSIDERATION

1. The relevant legislation is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988.

2. In this case, departmental records indicate that Ms Kingston contacted the Department on 28 November 2018 to lodge an application for a child support assessment. She noted that she and [Mr A] were separated under the same roof since 27 October 2018. She had initially moved out of the family home in early August 2018, but she moved back in with [Mr A] for the upbringing of the children on 27 October 2018 (folio 10). [Child 3] was born [in] November 2018. Ms Kingston’s child support application states that the parents had equal shared care of the children (folios 8/9).

3. 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 the children. Section 54F of the Act provides that an existing care percentage decision must be revoked if the Department is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that a care change would alter the cost percentage used for the parent in the administrative assessment. Section 55C of the Act contains a table that is used to work out a person’s cost percentage.

4. I also considered the Child Support Guide, which, at 2.2.1, offers the following relevant guidance in relation to care where parents are separated but living in the same house.

   Where parents are separated but living in the same house, the Registrar will determine each parent’s percentage of care for a child based on the individual circumstances of the case and evidence available. Generally, where the parents contribute in a similar manner to the care of the child, they will be regarded as sharing equally in the care of the child. In this case, the Registrar will determine that each parent has a care percentage of 50%. This care percentage will remain in place until either parent is able to demonstrate that the actual care of the child is something other than equally shared.

5. Ms Kingston told me that she did not dispute that she and [Mr A] were separated under one roof at the time she lodged her application. [Mr A] paid for most household expenses, including the mortgage and helped look after the older children, so she could concentrate on looking after baby [Child 3]. Ms Kingston said she would give [Mr A] some money towards the utilities bills and would generally buy food for her and the children. [Mr A] would also occasionally contribute to these costs.

6. Ms Kingston agreed that [Mr A] had shared care of the children at the time she lodged her application on 28 November 2018, but stated that she moved out of the family home just before Christmas 2018 (on 22 December 2018) and [Mr A] has had no care of any of the children since then.

7. [Mr A] confirmed with the Department on 14 January 2019 (folio 32) that he had been paying the mortgage ($660 per fortnight), day care fees ($480 per month) as well as most household bills and that he and Ms Kingston resided together in the family home until just before Christmas 2018.

8. [Mr A] stated on 2 September 2019 (in response to Ms Kingston’s objection) that [Child 3] was born by Caesarean and he had taken six weeks off work to support Ms Kingston and [Child 3] after the birth. He had paid for most household expenses and although Ms Kingston was limiting his physical contact with [Child 3], he was providing financial and emotional support for Ms Kingston (folio 61).

Conclusion

1. Care is generally calculated over a “care period”, which is a period that the Registrar or the 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 in Chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed, but it may be a shorter period depending on the circumstances of the case.

2. In this case the only care percentage in dispute is the care for [Child 3]. Ms Kingston had 100% care of [Child 1] and [Child 2] from 22 December 2018 pursuant to a further care determination made by the Department on 14 January 2019 (folios 29/30). Unfortunately, this care decision did not consider the care for [Child 3].

3. I have no evidence that the Department has made any other care decisions for [Child 3], apart from the one made on 30 November 2018, which was based on Ms Kingston’s initial child support application. At that time Ms Kingston notified that she and [Mr A] had equal shared care of the children.

4. Ms Kingston did not dispute that this initial decision was correct but submitted that a care change occurred about a month later, on 22 December 2018, and she has had 100% care of [Child 3] since then. Unfortunately, I cannot consider this subsequent change of care as part of this review.

5. Based on the limited evidence before me I therefore find that Ms Kingston and [Mr A] had shared care of [Child 3] (51% Ms Kingston and 49% [Mr A]) since 5 November 2018.

6. I have reached the same conclusion as the objections officer and will therefore affirm their decision.

DECISION

The decision under review is affirmed.