Jordison and Keate (Child support)

Jordison and Keate (Child support) [2024] AATA 2023 (3 April 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2024/BC027333
APPLICANT:  Ms Jordison
OTHER PARTIES:  Child Support Registrar
Mr Keate

TRIBUNAL:Member K Hamilton
DECISION DATE: 3 April 2024
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that in relation to the child [Child 1]:

Mr Keate’s percentage of care determination of 100% is revoked from 20 April 2023; and
Mr Keate’s percentage of care of the child [Child 1] is 0% from 21 April 2023.

CATCHWORDS
CHILD SUPPORT – percentage of care – whether there was a change to the pattern of care – 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 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

Ms Jordison and Mr Keate are the parents of [Child 1] (born 2006). Prior to December 2022, Mr Keate was recorded for child support purposes as having 100% care and Ms Jordison 0% care of [Child 1]. Ms Jordison was assessed to pay child support on that basis.
On 29 May 2023, Ms Jordison advised Services Australia – Child Support (Child Support) that [Child 1] was no longer living with Mr Keate, and [Child 1] had been staying with his half‑brother [Mr A] since December 2022. Ms Jordison is recorded as stating that [Child 1] stayed with Mr Keate for no more than 2 nights per fortnight (care that would correspond with Mr Keate have 14% care).
On 18 August 2023, Child Support refused to make a decision to reflect the care of [Child 1] as 14% to Mr Keate and 0% to Ms Jordison from 9 December 2022.
Ms Jordison objected to that decision on 21 August 2023. On 10 January 2024, a Child Support objections officer disallowed her objection. Ms Jordison then applied to the Administrative Appeals Tribunal (the Tribunal) for further review.
I heard the matter on 7 March 2024. Ms Jordison and Mr Keate participated by telephone and gave evidence.
Following the hearing, I issued directions requiring the parties to provide by 20 March 2024:
·      Any contemporaneous care calendars or other records showing where the child [Child 1] was residing from 10 December 2022 to date;
·      Evidence of all transfers made by either party to the child [Child 1], or to another person on [Child 1]’s behalf, to meet his living expenses and other costs from 10 December 2022 to date;
·      Any financial statements showing the child [Child 1]’s income and expenditure for accommodation and other living expenses from 10 December 2022 to date; and
·      Any other evidence they intend to rely on.
Ms Jordison submitted further evidence to the Tribunal, which was provided by the Tribunal to Mr Keate on 22 March 2024. Mr Keate was invited to provide a response to this further evidence by 29 March 2024. Mr Keate did not provide any further documents or response to the Tribunal. Accordingly, I have proceeded to make my decision on the basis of the evidence before me.

ISSUES

The legislative provisions relevant to this application are contained in the Child Support (Registration and Collection) Act 1988 (the Act) and the Child Support (Assessment) Act 1989 (the Assessment Act).
Care decisions are made pursuant to the Assessment Act. If a person applies for an administrative assessment of child support and has had, or is likely to have, a pattern of care for the child during the relevant care period, then the decision-maker must determine that parent’s percentage of care for the child during the care period: section 50 of the Assessment Act.
If a responsible person who was to have at least regular care of a child during a care period (at least 14% care) under a care determination made under section 50 had no care of the child, or a pattern of care that was less than regular care of the child, the care determination must be revoked and a new determination made: section 54G in Division 4, Subdivision C of the Assessment Act.[1]
[1] Section 54G can only apply, however, where the other parent’s care percentage has been determined under section 50.
A responsible person’s existing percentage of care must be revoked if the actual care of the child does not correspond with the existing percentage of care and, if a new percentage of care were determined, the responsible person’s cost percentage would change, and where section 54G does not apply: section 54F in Division 4, Subdivision C of the Assessment Act.
The legislation requires that if a determination of a responsible person’s percentage of care is revoked under Division 4, Subdivision C, and the responsible person for the child has had, or is likely to have, no pattern of care for the child during a care period, their percentage of care must be determined to be 0%: section 49 of the Assessment Act.
If both the parents of the child cease to be eligible carers of the child, and there are no non‑parent carers entitled to be paid child support in relation to the child, this is a child support terminating event: subsection 12(2AA) of the Assessment Act.[2]
[2] An eligible carer is “a person who has at least shared care of the child” (section 7B of the Assessment Act), with shared care being defined as having between 35% and 65% care of the child (section 5(3) of the Assessment Act).
The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Guide reflects government policy as to how the legislation is to be applied. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. In the case of G v MIBP [2018] FCA 1229, the Federal Court observed that it is clear from earlier authorities that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task. A lawful approach allows the adoption of appropriate policy as a guide, but not so as to control the making of the decision, and the Tribunal adopts that approach.
The issues which arise in this case are:
·      Was there a change in the child’s care? If so,
·      What is the new percentage of care determination for the parties?
·      What is the date of application of the revocation of the pre-existing percentage of care determination and the date of application of the new percentage of care determination for Mr Keate?

CONSIDERATION

At hearing, the parties’ evidence as to care arrangements for [Child 1] differed dramatically.
Ms Jordison stated that on 10 December 2022 (the date of [Child 1]’s 16^th birthday party), there had been a serious incident at Mr Keate’s home that resulted in [Child 1] being “kicked out of home” that night. Mr Keate agreed that there had been a serious incident, as reflected in his text message to Ms Jordison dated 11 December 2022 which read “[Child 1] is being arrested and charged. He is no longer welcome here at all. He caused thousands of dollars damage.”
The fact that there had been an incident at [Child 1]’s birthday party on 10 December 2022 (‘the December incident’) is both the beginning and the end of any common ground between the parties. While Ms Jordison’s evidence was that [Child 1] did not return to Mr Keate’s home after the December incident, other than sporadically to collect his belongings and occasionally stay overnight, Mr Keate’s evidence was that [Child 1] continued to live with him and did not move out of his home until September 2023. Both prior to and after this time, Mr Keate said that he continued to support [Child 1] financially.

Ms Jordison’s evidence

Ms Jordison told the Tribunal that prior to December 2022, she believed that the care recorded for [Child 1] should have been the same as the parties’ other child, [Child 2], namely 80% to Mr Keate and 20% to Ms Jordison. However, the care recorded for [Child 1] prior to the December incident is not a matter that is before this Tribunal, and there was in any event no evidence before me relating to care arrangements prior to 10 December 2022.
Ms Jordison said that after the December incident, [Child 1] was couch-surfing with friends, and he later moved into a unit with his half-brother, [Mr A]. Towards the end of March 2023, [Child 1] moved in permanently with [Mr A] and [Mr A]’s girlfriend.
Although Child Support’s records note that Ms Jordison advised in her initial contact on 29 May 2023 that [Child 1] was staying 2 nights per fortnight with Mr Keate, Ms Jordison disputed the accuracy of that record. She said that she advised Child Support that [Child 1] was not living at Mr Keate’s home after 10 December 2022, and he visited his father only occasionally. She said that Child Support told her that 14% was the minimum amount of time they could record for Mr Keate’s care, and they accordingly stated they would record care as 2 nights per fortnight. Ms Jordison indicated to Child Support that 2 nights a fortnight was the most that [Child 1] would be at Mr Keate’s home, and that did not occur every fortnight.
The hearing papers provided by Child Support note the contents of a conversation with Ms Jordison on 8 January 2024, in which she stated that [Child 1] sent her a text message on Friday 21 April 2023 saying “I am moving out” and he subsequently moved in with [Mr A] on 21 April 2023. Ms Jordison was asked why, if [Child 1] had not lived with Mr Keate since the December incident, the text message from [Child 1] on 21 April 2023 said that he was “moving out”.
Ms Jordison told the Tribunal that Mr Keate would not allow [Child 1] home to collect his belongings after the December incident. [Child 1]’s text message confirmed that he was moving out permanently and was not going back to Mr Keate’s house, but she said that he had not been living there for some time.
From April 2023, Ms Jordison said that [Child 1] did not live with his father and has had no contact with Mr Keate at all. She stated that Mr Keate provided no financial support to [Child 1], and that [Child 1] was independent. [Child 1] was working and earning around $1,200 per week doing casual [work] with [Mr A].
Ms Jordison said that both [Mr A] and [Child 1] had told her that [Child 1] was not receiving any financial support from Mr Keate. [Mr A], [Child 1] and [Child 2] have all told her that [Child 1] was not living with Mr Keate. She had asked [Mr A] to provide a statement, but he declined as he did not want to get involved.
Ms Jordison said that [Child 1] gives [Mr A] money for rent and food. Neither [Mr A] nor [Child 1] would give her specific details about their financial arrangements. Ms Jordison said that after the December incident, and before [Child 1] moved in permanently with [Mr A], [Child 1] would stay with friends and have dinner with them, [Mr A] would buy him food, or she would give [Child 1] cash for food and other necessities on occasions when she would see him.
Ms Jordison told the Tribunal that [Child 1] has his own Medicare card. His driver’s licence shows [Mr A]’s address as his place of residence.
The hearing papers contain an undated text message from a [Mr B], provided by Ms Jordison to Child Support. Ms Jordison described Mr [B] as a family friend who lives nearby. Mr [B] states:
I am writing this email to confirm I am a family friend and that I have spoken with [Child 1] on numerous occasions in regards to his living arrangements and family situation over the past several years …
[Child 1] was kicked out of home the night of his 16^th Birthday Party … [Child 1] since December has lived between family and friends and avoided going home post his birthday (December 2022), at most would only stay overnight on a very rare occasion …
[Child 1] dropped out and left school and began to work casually with his older brother [Mr A] (due to Mr Keate not financially supporting [Child 1]) and then end of March early April started full time work with his brother as a [occupation] and also moved in with his brother full time. [Child 1] is financially independent and has had no contact or support from his father since the end of last year.
Subsequent to the hearing, Ms Jordison submitted 5 pages of documents in response to my directions. This included:
·      A screenshot of [Child 1]’s attendance record at [COLLEGE 1] . This document notes that [Child 1] was absent from 14–22 August 2023, and the reason noted was “withdrawing” and under “parent ack” (presumably meaning parent acknowledged) noted “yes”;
·      A screenshot of a text from [Child 1] showing a bank transfer dated 16 March to “[Mr A] [bank] app bill” in the amount of $263;
·      A screenshot of a text message from [Mr A] (stated to be received on 18 March 2024) that reads:
I [Mr A] am writing this message to both Mr Keate and Ms Jordison, I’m not wanting to get involved or help either party in this matter. I have had [Child 1] in my care since around May 2023 and have not received any support from either Mr Keate or JordisonMs . This has been very hard and trying times on both myself and my partner, as he is my brother I will always help and support him whatever way possible. But as to date I have not received any monies or other support from either parent. When either myself or [Child 1] have gone to one of the parents for help neither of them ever would. Yes Mr Keate had paid [Child 1] for a job he did the other week [and] he did pay him $50-$100 more than what was originally agreed upon but other than that, that’s all the only help we have received from either parent to my knowledge.
Ms Jordison noted that she had submitted further evidence to Child Support to confirm dates when [Child 1] became independent, and that Child Support were making their own enquires to obtain further information (such as [Child 1]’s banking statements). However, other than the documents noted above as being provided by Ms Jordison subsequent to the hearing, no further documentation has been provided to the Tribunal.

Mr Keate’s evidence

Mr Keate told the Tribunal that he threw a party on 10 December 2022 for [Child 1]’s 16^th birthday. The party was gatecrashed and Mr Keate’s property was extensively damaged. Mr Keate said that his text of 11 December 2022 was sent in the heat of the moment, but [Child 1] only stayed away for a couple of days before they worked things out and he returned to Mr Keate’s home.
Mr Keate said that after the December incident, [Child 1] was “coming backwards and forwards” helping him to fix the damage to the property. Mr Keate denied that [Child 1] had moved out of his home either in December 2022 or in April 2023. He said that the pattern from April 2023 was that [Child 1] would be at Mr Keate’s home for 4–5 days during the week, and he would then stay with his friends over the weekends to go fishing. [Child 1]’s clothes, toiletries and other things were still at Mr Keate’s home.
Mr Keate said that [Child 1] did not go to live with [Mr A] until [Child 1] left [COLLEGE 1], which was in September 2023. Even after this time, [Child 1]’s boat and dive gear were still at Mr Keate’s house and [Child 1] would come over to get his gear when he needed it. Mr Keate said that he sees [Child 1] all the time – for example, [Child 1] went diving with him recently and helped him to recover an anchor. Mr Keate paid [Child 1] for this.
Mr Keate said that although [Child 1] moved out in September 2023, [Child 1] was not independent and Mr Keate was still financially supporting him. He has proof of this. Mr Keate said [Child 1] works casually, not full-time, and does not always earn $1,200 per week.
[Child 1] does not work enough to support himself so Mr Keate provides money to help [Child 1] out and pays for what he needs. He has paid for [Child 1]’s driving lessons and paid his fees to attend [COLLEGE 1]. He bought [Child 1] an electric bike so he could get to [COLLEGE 1]. [Child 1] dropped out of [COLLEGE 1] after Term 4 had commenced, so Mr Keate did not get any refund for the fees he paid for Term 4.
Mr Keate said that he supports [Child 1] learning about budgeting, and he recommended to [Mr A] that [Child 1] should pay rent so he learns how to budget. He said that [Child 1] and [Mr A] may have come to an agreement regarding [Child 1] paying rent. He said that he pays money weekly directly to [Mr A] to look after [Child 1] and to help pay for food and incidentals. Mr Keate estimated that this was around $1,000 per month, and in addition he gives cash to [Child 1] on occasions. Mr Keate said that [Child 1] would not know what money Mr Keate gives to [Mr A]. Mr Keate said he gives [Mr A] cash and does bank transfers to [Mr A], and he could easily provide bank statements showing transfers to [Mr A] and transactions for monies paid on [Child 1]’s behalf.
Mr Keate stated that [Child 1] was recently doing a [job] [with] [Mr A] and had to return urgently to the [Area 1]. Mr Keate paid for [Child 1]’s flight home.
Mr Keate said that [Child 1] is no longer working with [Mr A], and he is instead doing casual [work] subcontracting with different people on the [Area 1]. Mr Keate said that until [Child 1] passes his driving test, either [Mr A] or Mr Keate will drop [Child 1] to his worksite.
Mr Keate said that [Child 1] is still on Mr Keate’s Medicare card. [Child 1] may sometimes call Mr Keate if he needs to go to the doctor for something serious. Mr Keate said he provides [Child 1] with meals when he stays at his place and still buys him clothes – for example, he bought [Child 1] some riding gear for his dirt bike. He sees [Child 1] irregularly, but they catch up if they are both free and not working.

Assessment of care

Care will generally be worked out based on the number of nights that a child is or is likely to be in the care of the person during the care period (section 54A of the Assessment Act). However, neither the Assessment Act nor the Act provide a definition of what constitutes “care”.
The Guide at section 2.2.1 suggests that where there is doubt about who has “care” of a child, consideration will be given to the extent to which a person (relevantly in this case):
·has control of the child, including having overall responsibility for the child and making major decisions relating to who the child spends time with, and the child’s health, education, discipline, recreational and/or social activities, and making arrangements for others to meet the needs of the child (delegated care)
·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
·pays for the costs of meeting the needs of, or otherwise provides financial support for, the child.
The Guide also recognises at 2.2.1 that, in limited circumstances, a person may retain care of a child who is not living with them for a period of time. Consideration is given to who has responsibility for making arrangements for, and decisions about, the child’s welfare, as well as who is meeting the child’s costs, rather than just the accommodation arrangements themselves.
In Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959 (9 September 2011), the Court considered the current and historical versions of the Child Support Guide in forming the view that:
in determining whether and to what extent a person has care of a child for the purpose 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 extra curricular 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?

I found Mr Keate’s evidence of [Child 1]’s living arrangements, and the support (if any) he provided to [Child 1], subsequent to the December incident, on the whole to be unsatisfactory. I consider it is more likely than not that [Child 1] spent very limited time physically at Mr Keate’s home after 10 December 2022. Mr Keate’s evidence that [Child 1] was “coming backwards and forwards” to help repair the damage to Mr Keate’s home suggests, for a time at least, that [Child 1] was staying elsewhere for longer than the few days Mr Keate suggested was the case.
However, there is no compelling evidence before me that suggests [Child 1] was financially independent from 10 December 2022, or that any other person was providing financially for his needs. I therefore cannot be satisfied that Mr Keate was not providing care to [Child 1] between 9 December 2022 and 20 April 2023, or that there was a change in the pattern of care prior to 21 April 2023.
However, I am satisfied on the evidence that from 21 April 2023, [Child 1] moved permanently to a new home with his brother [Mr A], and that Mr Keate had no pattern of care from that date. I accept Ms Jordison’s evidence that [Child 1] advised her on 21 April 2023 that he was permanently moving out of Mr Keate’s home, and this is broadly corroborated by the evidence from [Mr A] stating that he has had care of [Child 1] from around May 2023.
There is no evidence before the Tribunal that corroborates Mr Keate’s assertions that he provided significant financial support to [Child 1] after 21 April 2023. Despite advising the Tribunal that he was happy to provide bank statements highlighting transactions that were for [Child 1]’s benefit, and that he could easily prove that he was financially supporting [Child 1] “100%”, Mr Keate did not provide any such evidence to the Tribunal.
Mr Keate has not provided any documentary evidence that demonstrates that he was contributing at all to the costs of [Child 1]’s accommodation or other everyday necessities. Even if I were to accept Mr Keate’s oral evidence that he paid for some driving lessons, a flight, an e‑bike and dirt bike gear for [Child 1], I would regard that intermittent expenditure as being in the nature of gifts from a father to his son. Mr Keate’s payment of fees for [Child 1] to attend [COLLEGE 1] (noting [Child 1] ceased attending [COLLEGE 1] prior to the end of Term 3), does not of itself indicate a level of ongoing financial support for [Child 1]’s basic living needs sufficient to suggest that he had ongoing care for [Child 1] after 21 April 2023. Nor does the fact that Mr Keate may have occasionally driven [Child 1] to work or socialised with him indicate that Mr Keate provided a significant level of emotional support or supervision, such that he could be regarded as providing ongoing care to [Child 1] after 21 April 2023.
Ms Jordison did not suggest that she had any pattern of care for [Child 1] from 21 April 2023 onwards. While she stated that she would occasionally give [Child 1] some cash to help him out when she saw him, I did not understand her evidence to amount to a contention that she was providing significant ongoing financial or other support to [Child 1], such that she could be regarded as having “care” of [Child 1].
I am satisfied on the basis of [Mr A] ’s evidence that from the time [Child 1] moved in with [Mr A], Mr Keate has provided no financial or other support to [Child 1]. I am satisfied on the balance of probabilities that from 21 April 2023, [Child 1] has largely met his own needs for financial, emotional or other support or been assisted to do so by persons other than Mr Keate and Ms Jordison.
I am satisfied that a change of care of [Child 1] occurred as notified by Ms Jordison on 29 May 2023. However, I find that the change of care occurred from 21 April 2023 and not from 10 December 2022. I find that from 21 April 2023, neither parent had any pattern of care for [Child 1].
A new percentage of care determination under section 49 of the Assessment Act that Mr Keate had 0% care of [Child 1] from 21 April 2023 would have the effect of changing Mr Keate’s cost percentage pursuant to section 55C of the Act.
Accordingly, I find, pursuant to section 54F of the Assessment Act, that Mr Keate’s pre‑existing percentage of care of 100% must be revoked, and that a new percentage of care determination of 0% for Mr Keate in relation to [Child 1] applies from 21 April 2023.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that in relation to the child [Child 1]:

Mr Keate’s percentage of care determination of 100% is revoked from 20 April 2023; and
Mr Keate’s percentage of care of the child [Child 1] is 0% from 21 April 2023.

[2024] AATA 2023

3 April 2024

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Judicial Review

Procedural Fairness

Statutory Construction