Pearson and Pearson (Child support)

[2019] AATA 571

Pearson and Pearson (Child support) [2019] AATA 571 (8 January 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/MC014942

APPLICANT:  Mr Pearson

OTHER PARTIES:  Child Support Registrar

Ms Pearson

TRIBUNAL:Member W Kennedy

DECISION DATE:  8 January 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – what is the likely pattern of care from the date of assessment –determinations correctly made - 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 Pearson is the parent liable to pay child support to Ms Pearson for their children, [Child 1], who was born in 2007, [Child 2], who was born in 2009 and [Child 3], who was born in 2012.  This application concerns the percentages of care used in the child support assessment.

2. On 27 March 2018 Ms Pearson 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 Pearson advised the Department that she and Mr Pearson had separated on 23 January 2017.

3. On 3 May 2018 the Department decided to accept Ms Pearson’s application, applying a care period commencing on 23 January 2017.  The Department determined that Ms Pearson had 80% care of the children and Mr Pearson had 20% care of the children.  The Department determined that the child support assessment would have effect from 27 March 2018.

4. On 13 June 2018 Mr Pearson objected to the care decision, claiming that he and Ms Pearson had only been separated since 23 March 2018.  On 13 August 2018 a Department objections officer decided to disallow Mr Pearson’s objection. 

5. On 1 September 2018 Mr Pearson applied to this Tribunal for a review of that decision.  The Tribunal considered the application and determined the matter on 8 January 2019.  In considering the application, the Tribunal took into account the oral evidence of Mr and Ms Pearson and the documentary material provided by the Department (folios 1 to 194).  Although the Department provided supplementary documents (folios 195 to 251) these were not received by the parties prior to the hearing and the Tribunal did not take them into evidence.  Copies of the other documents were provided to both parties prior to the hearing.  Mr and Ms Pearson each attended the hearing by conference telephone and gave 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.

4. At the hearing Mr Pearson said that although Ms Pearson had claimed that the parents had been separated from 23 January 2017 he did not consider that they had separated until 23 March 2018, when he received a letter from his solicitor.  He said that they had continued to live in the same house from March 2017 until he moved out in July 2018.  He said that from March 2017 to March 2018 they had lived together in a domestic relationship but that from March 2018 they had lived separately under the same roof.  He said that the assessment should reflect that each parent had 50% care of the children when they were separated but living under the same roof.  Mr Pearson has provided documentary evidence which he claims supports his assertion that he met the majority of the children’s costs during that period.  Ms Pearson disputes that the documents he has provided lead to the conclusion that Mr Pearson was meeting the children’s costs.  Ms Pearson has provided documentation that she claims shows that she is meeting the children’s school fees and other expenses.   

5. At the hearing Ms Pearson said that she considered that they had separated in December 2016.  She said that she had moved out of the marital home in January 2017 but had moved back in late March 2017.  At the hearing Ms Pearson said that she and Mr Pearson had lived separately under one roof from that time.  She said that Mr Pearson spent many nights at his girlfriend’s home.  She said that while Mr Pearson was providing some money under a private agreement, she meets most of their expenses and provides most of the care, taking the children to school and other activities.  She said that she only applied for child support when the private agreement broke down.

6. Each party has contradicted the other party’s oral evidence as to the nature of the relationship, particularly during the period prior to March 2017.  Although it is not crucial to the outcome, the Tribunal finds that the parents have been separated since at least January 2017 when Ms Pearson moved out of the marital home.  It finds that they were separated under one roof from March 2017.

7. Section 50 of the Act provides that the CSA 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)      both of the following apply:

(i)       the determination of a responsible person's percentage of care   for a child that was made under section 49 or this section is   revoked or suspended under Subdivision C of this Division,   except under paragraph 54FA(3)(b) or 54HA(3)(b);

(ii)       the Registrar 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 applies in relation to the responsible                 person.

1. An application for a child support assessment was made by Ms Pearson on 27 March 2018.  The parents agree that they were separated at that time.  This means that Ms Pearson’s application was a valid application under section 25 of the Act.

2. Although the parents do not agree as to the care arrangements that were in effect during the period in question the Tribunal finds that the weight of evidence favours Ms Pearson.  Although the figure of 80% provided by Ms Pearson is quite approximate there is no evidence available that would establish a more precise figure and, on the evidence before it, the Tribunal accepts that figure as being reasonable.

3. 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.  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.  Although noting that there have been subsequent events, those events do not affect the Registrar’s responsibility at the time of the application to make a decision as to the likely care.  Those subsequent events may result in the Registrar making later determinations, however any such other determinations are not before this Tribunal.

4. The Tribunal finds that Ms Pearson had 80% care of the children with effect from 23 January 2017.  Ms Pearson applied for the child support assessment on 27 March 2018.  Under section 7A of the Act the assessment commences on that date. 

DECISION

The decision under review is affirmed.