Mellor and Mellor (Child support)

[2019] AATA 1217

Mellor and Mellor (Child support) [2019] AATA 1217 (19 March 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC015624

APPLICANT:  Ms Mellor

OTHER PARTIES:  Child Support Registrar

Mr Mellor

TRIBUNAL:Member W Kennedy

DECISION DATE:  19 March 2019

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. Mr Mellor is the parent liable to pay child support to Ms Mellor for their children, [Child 1], who was born in 2010, and [Child 2], who was born in 2014.  This application concerns the percentages of care used in the child support assessment.

2. On 4 June 2018 Ms Mellor applied to the Child Support Agency of the Department of Human Services (the Department) to have an administrative assessment of child support made.  In making her application Ms Mellor advised the Department that she and Mr Mellor had separated on 2 February 2018 but had remained living under the same roof.  She said that since the separation she had had 100% care of the children.

3. On 10 July 2018 the Department decided to accept Ms Mellor’s application to have an administrative assessment of child support made and determined that the assessment would commence from 4 June 2018 and be based on Ms Mellor and Mr Mellor each having 50% care of the children.   

4. On 5 September 2018 Ms Mellor objected to the care decision, claiming that during the period she and Mr Mellor were separated under one roof, she was solely responsible for the children.  On 29 November 2018 a Department objections officer decided to disallow Ms Mellor’s objection, determining that there was insufficient evidence that Ms Mellor was providing a higher level of care than Mr Mellor. 

5. On 17 December 2018 Ms Mellor applied to this Tribunal for a review of that decision.  The Tribunal considered the application and decided the matter on 19 March 2019.  In considering the application, the Tribunal took into account the oral evidence of Mr and Ms Mellor and the documentary material provided by the Department (folios 1 to 335).  Copies of these documents were provided to both parties prior to the hearing.  Mr and Ms Mellor each attended the hearing by conference telephone and gave their oral evidence under affirmation.  The Child Support Registrar did not attend the hearing and was not represented.

ISSUES

1. In this case the Tribunal has to decide the percentage of care that each of the parents has or is likely to have of the children in the care period.

CONSIDERATION

1. The law that applies to this application is found in the Child Support (Assessment) Act 1989 (the Act).

2. The Department (acting for the Child Support Registrar) makes child support assessments using the statutory formula found in Part 5 of the Act.  The formula contains a number of elements called “particulars of the assessment”.  This includes the “percentage of care” for each parent in relation to the children.

3. The Department makes determinations of each parent’s percentage of care in accordance with sections 49 to 54L of the Act.  These provisions require the Department to make determinations of each parent’s percentage of care when first making a child support assessment and for those determinations to be revoked and remade in specified circumstances.

10.  At the hearing Ms Mellor said that during the period in question she had provided all of the financial resources to care for the children.  She said that the resources had come from their joint account but that Mr Mellor had ceased contributing to that account in May of 2018.  Ms Mellor acknowledged that the account had a balance of more than $43,000.00 at that time, that the balance was the result of the earnings of both parties and that income from a jointly owned investment property continued to be paid into the account.

11.  Ms Mellor also said that from February 2018 Mr Mellor had become disengaged from the care of the children and the maintenance of the household.  She said, as she was not working at the time, she was at home and providing the majority of the care.  Although she had originally claimed that she provided 100% of the care of the children, at the hearing she acknowledged that Mr Mellor also provided some care.  In support of her position Ms Mellor has provided documentation that she has prepared, including her electronic diary.  Ms Mellor has also provided a third party statutory declaration dated 4 July 2018 (folio 70).   The third party states that Ms Mellor drops the children off at school and picks them up and that at various times she has “sole care” of one or both of the children. 

12.  At the hearing Mr Mellor said that the financial resources to care for the children came from his earnings and from the earnings of a jointly owned investment property.  He provided evidence that some expenses were met directly by him while others were met through the joint account.  He acknowledged that he works long hours and that this affects the time he has with the children, but asserted that he became more engaged with the children after the couple separated in February 2018.  He said that Ms Mellor did pick up and drop off the children but that this was because she was not working.  He said that he undertook numerous activities with the children and that he was always an active parent.

13.  The parties have each provided a number of solicitor’s letters which evidence negotiations between them.  However only one of these letters is dated prior to 28 August 2018, when the parties began living physically separate.  The letters are concerned mostly with matters that are not directly relevant to the matter before the Tribunal.

14.  The Tribunal notes that much of the evidence provided by both parties is subjective and opinionated and is directed, as is common in such matters, at establishing that the party providing the evidence is the better parent.  The issues disputed by the parents are generally of limited relevance to the matter before the Tribunal.  For instance whether on 27 February 2018 Mr Mellor arrived home at 7:30 pm (as asserted by Ms Mellor) or 6:52 pm (as asserted by Mr Mellor) is of little moment.  The same can be said for most of the material provided by the parties, which tends towards assertion rather than proof.

15.  At its heart the dispute is about what constitutes care.  The Child Support Guide (the Guide) is a guide prepared by the Department to assist decision makers.  At reference 2.2.1 it states:

Where there is doubt, the Registrar will consider whichever of the following are relevant to the         particular case:

·To what extent the person has control of the child, including having overall responsibility for the child and making:

omajor decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and

oarrangements for others to meet the needs of the child (delegated care).

·To what extent the person meets the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra-curricular activities.

·To what extent the person pays for the costs of meeting the needs of the child.

·To what extent the person otherwise provides financial support for the child.

·To what extent the child provides for his or her own needs or has those needs met from another source.

·To what extent the child is financially independent or financially supported from another source.

16.  The Tribunal is not drawn to the position that care is limited to direct provision of services to the children, nor is it drawn to the position that being alone with the children for a period constitutes “sole care”.  The Tribunal finds that Mr and Ms Mellor shared the care of the children at the relevant time.  The determination of care is not an arithmetic calculation.  Rather it depends on an appreciation of the overall circumstances and the dynamics of a family relationship.  The Tribunal finds that the evidence supports the conclusion that despite the differences in how they discharged their caring responsibilities, during the relevant period care of the children was shared equally between the parents.

17.  Section 50 of the Act provides that the Department must determine a percentage of care if a number of criteria are met:

Determination of percentage of care--responsible person has had etc. a pattern of care for a child

(1)  This section applies if:

(a)  either of the following applies:

(i)  an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;

(ii)  a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;

and the Registrar is satisfied that a responsible person for the child has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances; or

(b)  the Registrar:

(i)  revokes, under Subdivision C of this Division, a determination of a responsible person's percentage of a care for a child that was made under section 49 or this section; and

(ii)  is satisfied that the responsible person has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.

(2)  The Registrar must determine the responsible person's percentage of care for the child during the care period.

(3)  The percentage determined under subsection (2) must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.

(4)  Subsection (3) does not apply if section 51 or 52 applies in relation to the responsible person.

1. An application for a child support assessment was made by Ms Mellor on 4 June 2018.  The Tribunal is satisfied that there is a pattern of care and therefore the Registrar is required to determine the percentage of care that corresponds with the actual care that the parents have during the care period.

2. The Tribunal has found that the parents each have 50% care of the children.    

3. Paragraph 50(1)(a) of the Act states that the care period is the period that is considered appropriate in the circumstances of the case.  The Child Support Registrar’s policy is that a care period is generally a 12 month period; however a care period of less than 12 months is appropriate where the pattern of care changes over a definable period of less than 12 months in a specific and measurable way.  The Tribunal’s decision relates to a point in time, that point being 10 July 2018, when the Department made its decision.  The Tribunal finds that it was likely at that time that each of the parents would have 50% care of the children.  The Tribunal’s determination will affect the child support assessment from the date of Ms Mellor’s application, which was 4 June 2018. 

4. The Tribunal notes that the Department has made a subsequent change of care decision which affected the child support assessment from 28 August 2018.  That decision is not under review and the present decision of the Tribunal does not affect that subsequent change of care.

5. The Tribunal finds that in the care period, and affecting the assessment from 4 June 2018 Ms Mellor and Mr Mellor each had 50% care of the children.

DECISION

The decision under review is affirmed.