Kaufman and Kaufman (Child support)

[2023] AATA 4009

Kaufman and Kaufman (Child support) [2023] AATA 4009 (27 September 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/MC026017

APPLICANT:  Ms Kaufman

OTHER PARTIES:  Secretary

Mr Kaufman

TRIBUNAL:  Member H Moreland

DECISION DATE:  27 September 2023

DECISION:

The Tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations 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. Ms Kaufman and Mr Kaufman are the parents of [Child 1] and [Child 2].  Ms Kaufman and Mr Kaufman have, at different times, each been the parent liable to pay child support to the other.

2. On 22 May 2018, Services Australia – Child Support (Child Support) determined that Ms Kaufman had a care percentage of 0% and Mr Kaufman had a care percentage of 100% from 1 February 2018, effective in the assessment from 3 April 2018.

3. On 21 June 2018, Ms Kaufman objected to this decision and on 22 August 2018, an objections officer wrote to Ms Kaufman and Mr Kaufman and informed them that they had decided to change the decision. The objections officer’s decision was that Ms Kaufman had a care percentage of 0% and Mr Kaufman had a care percentage of 100% from 1 March 2018, notified on 3 April 2018.

4. On 26 April 2023, Ms Kaufman lodged an application with the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) for a review of the decision. The hearing took place on 27 September 2023. Ms Kaufman and Mr Kaufman both participated in the hearing by teleconference and gave sworn evidence until around 17 minutes into the hearing when Mr Kaufman’s line dropped out, before the Tribunal was able to ask him about the care of [Child 1] and [Child 2] with regard to this decision. The Tribunal made numerous attempts to reconnect Mr Kaufman to the hearing but was unsuccessful. The Tribunal concluded that Mr Kaufman had chosen to leave the hearing and decided to continue in his absence. In making its decision, the Tribunal took into consideration the documents provided by the Department (numbered 1–365), which were also sent to Ms Kaufman and Mr Kaufman. Ms Kaufman provided additional documents to the Tribunal which were exchanged between the parties (A1–A29). Relevant aspects of the evidence and material before the Tribunal will be referred to in the Tribunal’s consideration of the issues to be decided.

CONSIDERATION

1. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

2. The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Guide contains governmental guidelines and 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).[1] In the recent case of G v MIBP,[2] 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.

   [1] (1979) 2 ALD 634.

   [2] [2018] FCA 1229.

Was there a change in the care of [Child 1] and [Child 2]?

1. It is not in dispute that there was a change in care with regard to [Child 1] and [Child 2] which resulted in them being 100% in the care of Mr Kaufman. What is in dispute, is when the care changed.

2. As shown in the Child Support papers, the care of [Child 1] and [Child 2] had been recorded as Ms Kaufman having a care percentage of 68% and Mr Kaufman having a care percentage of 32% from 26 January 2015, effective in the assessment from 11 March 2015.[3]

   [3] Child Support papers, pp 4 and 322.

3. According to the Child Support papers, this was based on court orders which were made in the Federal Circuit Court of Australia, dated 27 January 2015. According to the orders, [Child 1] and [Child 2] were to live with Ms Kaufman and spend time with Mr Kaufman, from 26 January 2015 each alternate Monday after school until the following Tuesday before school; and from 30 January 2015, each alternate Friday after school until the following Monday at commencement of school. The orders also provided for [Child 1] and [Child 2] to be cared for by Ms Kaufman and Mr Kaufman on a week about basis for term and school holidays; and for some alternating care in relation to birthdays and Christmases.[4]

   [4] Child Support papers, pp 11–15.

4. The Tribunal however, observes, that if Mr Kaufman was caring for the children from Friday to Monday on one week during the school terms and from Monday to Tuesday on the alternating week during the school terms (i.e. 10/14 nights per fortnight) and the rest of the year was roughly 50/50 care, the care was more likely to be reflected in a care percentage of 66% for Ms Kaufman and 34% for Mr Kaufman. This is because there are around 40 weeks in a school year (280 nights) and 12 weeks of school holidays. So, if Mr Kaufman had care of the children for 10/14 nights per fortnight (according to the court orders), he would have care of them for 80 nights during term-time and Ms Kaufman had the remaining 9/14 nights, she would have care of them for 200 nights; and they would each have the children for 42 nights of the 84 nights of school holidays. Therefore, Ms Kaufman would have a care percentage of 66% (242 nights) and Mr Kaufman would have a care percentage of 34% (122 nights).

5. As noted above, Mr Kaufman left the hearing before the Tribunal was able to ask him questions regarding the care of [Child 1] and [Child 2] with regard to this decision.

6. The Tribunal, however, notes that according to the Child Support papers:

   ·On 3 April 2018, Mr Kaufman, contacted Child Support and advised it that the care of [Child 1] and [Child 2] had changed on 1 February 2018 and Mr Kaufman had been providing 100% care of them since that date.[5]

   [5] Child Support papers, pp 5 and 40.

   ·On 22 May 2018, Mr Kaufman, when contacted by Child Support, said that Ms Kaufman lived in [Town 1], rather than across the road from the children’s school, and had “probably” seen [Child 1] and [Child 2] three times since 1 February 2018; and that Ms Kaufman had moved interstate in February 2018 due to her being in a new relationship.[6]

   [6] Child Support papers, p 70.

   ·On 19 July 2018, Mr Kaufman:

   oIn response to Ms Kaufman’s submission that she lived opposite [Child 1] and [Child 2]’s school, Mr Kaufman said that Ms Kaufman had been evicted from there in March 2018 and that after that Ms Kaufman had moved to [Town 1] with her partner;

   oProvided third party support from his partner, a neighbour, the school [Child 1] and [Child 2] attended, as well as his employer;

   oDisputed that he had had care of the children from around 13 May 2018 due to Ms Kaufman being unwell;

   oDisputed that Ms Kaufman had had care of [Child 1] and [Child 2] every weekend from Friday to Monday and one week off during the school holidays for the period from 1 February 2018 to 19 July 2018. Mr Kaufman said that since 1 February 2018, Ms Kaufman had seen [Child 1] and [Child 2] around five times and that this was only for trips to the movies, dinner or lunch, rather than overnight care;

   oDisputed that care had been occurring in accordance with the court-ordered care until the middle of May 2018.[7]

   ·Mr Kaufman submitted a photo of a notice, stating that VCAT had made a possession order on 5 April 2018 with no context showing where the photo was taken.[8]

   ·Mr Kaufman submitted a letter from the acting school principal of the school attended by [Child 2] and [Child 1], dated 16 July 2018, which stated that [Child 2] and [Child 1] lived with Mr Kaufman but did not stipulate a date from which they lived with Mr Kaufman.[9]

   ·Mr Kaufman submitted a letter from his employer, dated 16 July 2018, confirming that [Child 2] and [Child 1] had been in Mr Kaufman’s care 100% of the time “since late February 2018”.[10]

   ·Mr Kaufman submitted a letter from his neighbour, dated 27 June 2018, stating that [Child 2] and [Child 1] had been in Mr Kaufman’s care 100% of the time “since late February 2018”.[11]

   ·Mr Kaufman submitted a screenshot of SMS messages, which were undated, showing SMS messages purportedly from Ms Kaufman to Mr Kaufman’s mother, stating that she was leaving Victoria.[12] According to the Child Support documents, Mr Kaufman said that his mother received that text message on 28 February 2018.

   [7] Child Support papers, pp 77–79.

   [8] Child Support papers, p 81.

   [9] Child Support papers, p 82.

   [10] Child Support papers, p 83.

   [11] Child Support papers, p 86.

   [12] Child Support papers, pp 87–88.

7. As shown in the Child Support documents, the objections officer decided that the care of [Child 1] and [Child 2] had changed to them being in the care of Mr Kaufman 100% of the time but that this occurred from 1 March 2018 rather than 1 February 2018, based on evidence obtained during the objections process.[13]

   [13] Child Support papers, pp 117–118.

8. As shown in the Child Support papers, as part of the objections process, Ms Kaufman told Child Support that she had had care of [Child 1] and [Child 2] until May 2018.[14]

   [14] Child Support papers, p 5.

9. In her written submissions, Ms Kaufman said:

   Yes because my ex called up and said he had my boys 6 months earlier , which he did not i
   can prove i sent proof in but centrelink lost all as I said it went through centrelink and i
   also sent in court documents that were granted to both parents at family law not long
   before this discusting decision was made and my ex called to change care for a joke and
   

   [15] Additional documents, p A1.

   was since charged through police for a few things he recently at that date claimed.[15]

10. Ms Kaufman told the Tribunal that the care, according to the court orders, was being followed until the end of May/start of June 2018. Ms Kaufman said that she had been travelling back and forth between Victoria and interstate between February and May 2018 but had still been providing care for [Child 1] and [Child 2] during that period. When asked about the letter from Mr Kaufman’s employer, Ms Kaufman said that she did not know what to say about it. Regarding the tenancy agreement, Ms Kaufman told the Tribunal that she had fought to stay in her rental property and had not been forced to leave. Ms Kaufman also provided the Tribunal with a Notice to Vacate document which stated that Ms Kaufman was required to vacate by 28 March 2018, and noted that she did not vacate until the end of May.[16]

    [16] Additional documents, p A23.

11. Ms Kaufman also provided the Tribunal with a letter from a [Ms A], which stated:

    My name is [Ms A] and I am a VIT fully registered teach or lives and work’s
    In the [specified] area for the last 20 years
    I have Known [Ms Kaufman] for the last 14 years having met her through a mutual friend
    An ex student of mine. I had the pleasure of teaching her boys at [School 1]
    [Ms Kaufman] herself is friendly honest and a great mum I would like to say I can confirm that she had her children between the dates of January through to start of June. I Know this as I use to visit boys

    At the money of where they lived in [address] across the road from there school and I also taught them on off as school ,I hope this clarifies things a little clearer.[17]

    [17] Additional documents, p A5.

12. Ms Kaufman also provided the Tribunal with a letter from a [Ms B], dated 19 September 2023, which stated:

    I have been friends with [Ms Kaufman] for more than 30 years and am familiar with her family situation.

    I can verify that [Ms Kaufman] was living at [redacted] directly across the road from [College 1], and had her children in her care for most of the time.
    

    [18] Additional documents, p A26.

    To the best of my knowledge I can advise that [Ms Kaufman] lived at this address between 1 February 2018 and 30 June 2018 before moving to [Town 2]. I visited her at this address on many occasions during this period.[18]

1. Ms Kaufman also provided a number of pages of bank statements, showing transactions occurring in Victoria from February through June 2018.[19] Having reviewed the bank statements, the Tribunal finds that they may show that Ms Kaufman was in Victoria during that period but do not demonstrate that Ms Kaufman had overnight care of [Child 1] and [Child 2] during that period.

   [19] Additional documents, pp A6–A22.

2. In assessing and balancing the evidence before it, the Tribunal places greater weight on the contemporaneous evidence provided by Mr Kaufman in 2018, than the evidence provided by Ms Kaufman in 2023. Further, the Tribunal observes that Mr Kaufman notified Child Support of the change in care on 3 April 2018 and finds, given there is no dispute that the care changed, that it is more likely that Mr Kaufman reported the change in care after he said it occurred than before Ms Kaufman said the change in care occurred.

3. The Tribunal also accepts that Mr Kaufman’s mother received the SMS message on 28 February 2018 and the care changed shortly after that, so that Mr Kaufman had a care percentage of 100% and Ms Kaufman had a care percentage of 0% from 1 March 2018.

Should the existing care determination in relation to [Child 1] and [Child 2] be revoked?

22.Subsection 54F(1) of the Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child.

23.In this case, a care determination had been made under sections 49 and 50 of the Act, that being that Ms Kaufman had a care percentage of 68% and Mr Kaufman had a care percentage of 32% in relation to [Child 1] and [Child 2]. Based on the Child Support papers, as well as the evidence of Ms Kaufman and Mr Kaufman, the Tribunal is satisfied that the care that was taking place from 1 March 2018 did not correspond with that care percentage decision. Therefore, paragraph 54F(1)(a) of the Act is satisfied. This means that under subsection 54F(1) of the Act, the Tribunal revokes the previous care percentage determination.

24.According to sections 49 and 50 of the Act, a new determination of percentage of care is required to be made when an existing determination has been revoked. Section 49 of the Act applies in cases where “the Registrar is satisfied that a responsible person for the child has had, or is likely to have, no 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”. Section 50 of the Act applies in cases where “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”.

25.This means the Tribunal is required to determine what an appropriate “care period” is in the specific circumstances of the case, and what pattern of care the person has had, or is likely to have, in that care period.

26.The Tribunal is satisfied that it is appropriate that a care period of 12 months commence from 1 March 2018; and that from that date, a new determination of care is to be made under sections 49 and 50 of the Act and that under that determination, from 1 March 2018, Ms Kaufman had 0% and Mr Kaufman had 100% care of [Child 1] and [Child 2].

From which date does the change in care percentage apply?

1. When there is an existing care determination for a child, a parent or a non-parent carer may notify the Registrar (or the Secretary) of a care change (paragraphs 54F(1)(a), 54G(1)(d) and 54H(1)(a)), or the Registrar (or Secretary) may “otherwise become aware” of the care change (paragraphs 54F(1)(a) and 54H(1)(a)).

2. Subparagraphs 49(1)(b)(i) and 50(1)(b)(i) of the Assessment Act require that where there is an existing care determination it must be revoked before a new determination can be made to take account of a care change.

3. The Tribunal must first consider if a revocation under section 54G is possible and only if it is not, move on to section 54F (paragraph 54F(1)(c)).  Subsection 54G(1) provides that determinations for both parents must be revoked if certain conditions are met:

   · a parent was to have at least regular care (14%) of the child based on the existing care determination under section 50, but they have had no actual care or less than regular care of the child, despite the other parent making the child available;

   · the other parent’s existing percentage of care was determined under section 50; and

   ·     the other parent notified the Registrar or the Secretary within a reasonable time that the parent with the reduced care has no care or less than regular care.

27.As noted above, Child Support was notified that there had been a change in care on 3 April 2018. What a “reasonable time” for informing Child Support about a chance in care is not defined in the Act but according to the Guide, at 2.2.3 Below regular care determinations, it is 28 days.[20] The Tribunal finds that as Child Support was not notified within a reasonable time (28 days), section 54G cannot apply. This means the Tribunal is required to then apply section 54F.

[20] regard to the date of effect provisions, the tribunal notes that this matter relates to a period during which there were changes to the relevant legislation.

29.Prior to 23 May 2018, at subsection 54F(2), the Act provided that:

(2) The revocation of the determination takes effect at the end of:

(a) if the Registrar or the Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(c) within 28 days after the change of care day for the responsible person:

(i)in a case where that change of care day occurs during the interim period for the determination—the day on which the interim period ends; or

(ii)otherwise—the day before that change of care day; or

(b) if the Registrar or the Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person but before the interim period for the determination has ended—the day on which the interim period ends; or

(c) otherwise—the day before the day on which the Registrar or the Secretary is notified, or otherwise becomes aware, of that matter.

30.Section 51 of the Act says that a care determination may be made (known as an ‘interim determination’) if court orders (or a parenting plan) specifying care arrangements are not complied with and the parent with reduced care is taking ‘reasonable action’ to have the court order or parenting plan complied with.

31.The Guide states the following with regard to “taking reasonable action” at 2.2.4 Disputed care arrangements:

Taking reasonable action to ensure compliance with care arrangement
The person with reduced care must take reasonable action to ensure compliance with the care arrangement throughout the interim period in order to have the child support assessment continue to be based on the care arrangement for the interim period. If the person with reduced care ceases taking reasonable action, the interim period will end on the day the reasonable action ceased. Reasonable action could include:

·negotiating with the other party in a genuine attempt to ensure compliance with the care arrangement

·making and/or attending an appointment at a Family Relationship Centre (FRC) or other dispute resolution service with the aim of ensuring the care arrangement is adhered to

·seeking or obtaining legal advice regarding the making of a court order

·filing an application to a court to have an order made or enforced

·attending a hearing at court to seek an order to be made or enforced, or

·notifying the police that the child has been taken without consent.

This list is not exhaustive and other forms of action may be considered reasonable, according to the circumstances of both parties and the child. The Registrar may seek evidence that reasonable action has been taken. Evidence may include:

·a written account of the steps the parent has taken to negotiate with the other parent, verified by an independent third party such as a legal representative

·documentation from an FRC or dispute resolution service setting out the details of an upcoming appointment and the action sought, or

·documentation of police or court action.

1. The Tribunal considered whether an interim period applied in this case but concluded that there was no evidence before it that Ms Kaufman was taking action to have the court orders enforced because Ms Kaufman contends that she maintained care of [Child 1] and [Child 2] from 1 March 2018 to late May 2018. Further, according to the Child Support papers, Ms Kaufman told it that the court orders were being followed until mid-May 2018 and Mr Kaufman said that they were not being followed.[21]

   [21] Child Support papers, p 5.

33.This means an interim care period does not apply.

34.In this case, that would mean that the date of revocation of the previous care determinations for both parents would be the day before the date that Child Support was notified of the change in care, that being 2 April 2018 (as Child Support was notified on 3 April 2018), so no variation in the rate of child support payable as a result of the change in care percentage would be payable prior to 3 April 2018.

35.The Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018 (the 2018 Amending Act) amended the date of effect provisions in two steps.

36.The first relevant step in the amended provisions was the insertion of subsection 54F(3) by section 37 in Part 1 of the 2018 Amending Act, to take effect from 23 May 2018. It read:

(3) The revocation of the determination takes effect at the end of:

(a) if the Registrar or Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(a) within 28 days after the change of care day for the responsible person—the day before the change of care day; or

(b) otherwise—the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter.

37.This case, under the amendment, would have the same outcome. It would mean that the date of revocation would be the day before the date that Child Support was notified of the change in care, that being 2 April 2018 (as Child Support was notified on 3 April 2018), so no variation in the rate of child support payable as a result of the change in care percentage would be payable prior to 3 April 2018.

Date of effect of the Tribunal’s decision

38.Section 95N of the Registration Act provides that a review decision that is varied or substituted will have effect from the date the application for review was made if the application was lodged more than 28 days after the objection decision. However, if there are special circumstances that prevented the person from lodging the application within 28 days, the Tribunal may allow for a longer application period.

39.In this case, the decision under review is affirmed so section 95N does not apply.

DECISION

The Tribunal affirms the decision under review.