Rebert and Turville (Child support)

[2020] AATA 1475

Rebert and Turville (Child support) [2020] AATA 1475 (1 April 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC018171

APPLICANT:  Ms Rebert

OTHER PARTIES:  Child Support Registrar

Mr Turville

TRIBUNAL:Member F Staden

DECISION DATE:  01 April 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care –likely pattern of care from the commencement of the child support assessment - 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 Rebert and Mr Turville are the separated parents of [Child 1], born 2005, and [Child 2], born 2002 (the children).

2. On 3 October 2019, Ms Rebert applied to the then Department of Human Services – Child Support (Child Support) for a child support assessment for [Child 1] and [Child 2]. She stated that her care percentage for [Child 2] was 86%, with Mr Turville having 14%, and for [Child 1] 72%, with Mr Turville having 28%.

3. After trying unsuccessfully to contact Mr Turville, on 17 October 2019 Child Support accepted Ms Rebert’s application for a child support assessment and accepted the care percentages as stated by Ms Rebert.

4. On 7 November 2019, Mr Turville lodged an objection to the care percentages being used in the assessment. He provided a variety of documents in support of his objection.

5. On 11 December 2019, an objections officer allowed Mr Turville’s objection and accepted Ms Rebert’s child support assessment application with care percentages of 0% to Ms Rebert and 100% to Mr Turville for [Child 1] and 58% to Ms Rebert and 42% to Mr Turville for [Child 2] from 3 October 2019.

6. On 7 January 2020, Ms Rebert applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) for review of the objections officer’s decision. 

7. A hearing was conducted on 1 April 2020. Ms Rebert and Mr Turville gave sworn evidence by telephone. The tribunal had before it documents provided by Child Support (128 pages), a copy of which was sent to the parties before the hearing. Prior to the hearing, Mr Turville provided the tribunal with additional material (B1 to B11), a copy of which was given to Ms Rebert and Child Support.

8. Relevant aspects of the evidence are referred to in the consideration below.

ISSUES

1. The relevant legislation in this case is the Child Support (Assessment) Act 1989 (the Assessment Act). The tribunal also had regard to the Child Support Guide, Child Support’s online technical and policy guide to the administration of the child support scheme.

2. Child Support, acting for the Child Support Registrar, generally makes child support assessments using a statutory formula in Part 5 of the Assessment Act. This formula contains a number of elements called the particulars of the assessment. They include a care percentage and a cost percentage for each parent in relation to each child.

3. Child Support decides each parent’s care percentage in line with sections 49 to 54L of the Assessment Act. These provisions require Child Support to decide each parent’s care percentage when first making a child support assessment and to revoke and remake those decisions in specific circumstances.

4. Sections 49 and 50 of the Assessment Act require Child Support, or here the tribunal, to determine the likely pattern of care for a child during a care period that is considered appropriate, usually 12 months. A care period begins on the day the actual care of a child began or changed and the same care arrangements are assumed to apply for the care period unless Child Support or Department of Human Services – Centrelink are informed otherwise.

5. The concept of care is not defined in child support legislation. In Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959 (Polec) the Court stated:

   In my view, in determining whether and to what extent a person has care of a child for the purposes of the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988, it is necessary to consider the following:

   a. To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extracurricular activities?

   b. To what extent does the person make arrangements for others to meet the needs of the child?

   c. To what extent does the person pay for the costs of meeting the needs of the child?

   d. To what extent does the person otherwise provide financial support for the child?

   e. To what extent does the child provide for his or her own needs or have those needs met from another source?

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

6. The key issue which arises in this case is what care percentages reflect the likely pattern of care for [Child 1] and [Child 2] from 3 October 2019.

CONSIDERATION

Issue 1: What care percentages reflect the likely pattern of care for [Child 1] and [Child 2] from 3 October 2019?

1. Ms Rebert and Mr Turville each vehemently dispute the evidence of the other. There was lengthy discussion about past care arrangements for the children and the involvement of various professionals in the life of each child over time. Given such a high level of disagreement, the tribunal decided to begin the care period in this case from the date of Ms Rebert’s application for a child support assessment. Once the tribunal clarified that the focus here was on the likely pattern of care for the children from 3 October 2019, some points of agreement or near agreement emerged.

   [Child 1]

2. Ms Rebert said that she accepted that from around 3 October 2019, Mr Turville had provided about 90% of the care for [Child 1]. Mr Turville stated that he had provided 100% of [Child 1’s] care from 3 October 2019. Care percentages of 90% and 100% are both associated with a cost percentage of 100% for the purposes of the child support assessment. The tribunal therefore found no reason to change the finding of the objections officer that Mr Turville provided 100% of [Child 1’s] care from 3 October 2019.

   [Child 2]

3. Ms Rebert stated that from 3 October 2019 the most care Mr Turville had provided for [Child 2] was 20% to 30%. Mr Turville argued that he was then regularly providing three nights of care for [Child 2] every weekend, a care percentage of 42%. Mr Turville further stated that [Child 2] has been 100% in his care since 20 December 2019. Ms Rebert did not dispute the latter statement, noting that she has been very unwell for some months which has impacted her ability to provide care for the children.

4. Mr Turville provided Child Support and the tribunal with evidence in relation to his meeting the costs of the children. This was mostly the costs of [Child 1] although he did provide evidence that he is paying for [Child 2’s] mobile phone from February 2020. Ms Rebert provided no costs evidence. She again pointed to her illness as preventing her from gathering such information. Both parties agreed that [Child 2] is in receipt of youth allowance which provides her with a direct income source of her own.

5. The only independent third-party evidence available is that of [Counsellor A], trauma counsellor for [Child 1]. In a 20 November 2019 letter, [Counsellor A] noted that [Child 1] had told her that [Child 2] was staying with Mr Turville every weekend and that he paid many of [Child 2’s] expenses including her telephone bill. As this evidence is consistent with that of Mr Turville, the tribunal decided to accept Mr Turville’s evidence in relation to the care of [Child 2], finding that his care percentage for [Child 2] was 42% while that of Ms Rebert was 58%.

   Conclusion

6. The tribunal found that, under sections 49 and 50 of the Assessment Act, the likely care pattern for [Child 1] from 3 October 2019 was a care percentage of 0% for Ms Rebert and a care percentage of 100% for Mr Turville.

7. The tribunal further found that, under section 50 of the Assessment Act, the likely care pattern for [Child 2] from 3 October 2019 was a care percentage of 58% for Ms Rebert and a care percentage of 42% for Mr Turville.

DECISION

The decision under review is affirmed.