Keenum and Keenum (Child support)

[2024] AATA 2907

Keenum and Keenum (Child support) [2024] AATA 2907 (8 July 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/SC027794

APPLICANT:  Mr Keenum

OTHER PARTIES:  Child Support Registrar

Ms Keenum

TRIBUNAL:Member R Prasad

DECISION DATE:  8 July 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the existing care determination is revoked on 25 February 2023 and a new care determination is made that Mr Keenum had 0% care and Ms Keenum had 0% care of the child from 26 February 2023.

The Tribunal decides not to make a determination under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 and so the Tribunal’s decision has effect from 12 April 2024.

CATCHWORDS
CHILD SUPPORT – percentage of care – change in care – child moved out of home – existing percentage of care determinations revoked – new determinations made – date of effect – 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

1. Mr Keenum (the father) and Ms Keenum (the mother) have had a registered child support assessment for their child. Since 5 October 2022, Services Australia – Child Support (Child Support) has collected child support on the basis that the mother had 100% care and the father 0% care of the child. These percentages denote the existing percentages of care.

2. On 29 May 2023, the father notified Child Support of a change in the care on the basis that the child was living with their daughter, the child’s sister (the sister), and the mother has had 0% care since mid-February 2023.

3. On 23 June 2023, Child Support decided to accept the care change and amended the particulars of the assessment to reflect that the father had 0% care and mother had 0% care from 16 February 2023 (the original decision).

4. On 3 July 2023, the mother objected to the original decision on the basis that the child slept at the sister’s house during the week for school but stayed with the mother on the weekends. She also advised that she sometimes cooked for the child while they were with the sister. The mother said that the child was under 17 years of age and was still in her care, and that she buys everything for the child including their uniform and gives the sister money to help pay for food and other things for the child.

5. On 1 September 2023, Child Support allowed the mother’s objection and reverted back to the existing percentages of care (the objection decision).

6. On 12 April 2024, the father sought review of the objection decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal).

7. The matter was heard on 26 June 2024. The father appeared by MS Teams video and mother appeared by MS Teams audio and provided a statutory declaration after the hearing (folios B1 to B2). The Child Support Registrar elected not to be represented at the hearing, but provided documentation (folios 1 to 80).

ISSUES

1. The relevant issue before me is whether there was a change to the child’s care arrangements, and, if so, the date of effect of the new care determination.

CONSIDERATION

What is required?

1. Section 49 of the Child Support (Assessment) Act 1989 (the Act) provides that if I am satisfied that a responsible person for the child has had, or is likely to have, no pattern of care for a period (the care period) as I consider to be appropriate in the circumstances, I must determine the percentage of care for the child to be 0%. If an existing determination of care percentage is revoked or suspended, and I am satisfied a responsible person has had, or is likely to have, a pattern of care for the child during the care period as I consider appropriate in the circumstances, under section 50, I must determine the responsible person’s percentage of care. I must therefore consider the relevant pattern of care for the child.

2. Section 51 of the Act provides the percentage of care where a care arrangement applies but is not complied with, and the person with reduced care of the child is taking reasonable action to ensure the care arrangement is complied with.

3. The Act, under section 54, defines ‘reduced care of a child’ to mean where a person has less actual care than the care that is provided for under a care arrangement, such as a court order. Section 54A provides that actual care may be worked out based on the number of nights the child was, or is likely to have been, in the care of the relevant person.

4. Under section 54F of the Act, a determination of an existing care percentage must be revoked if there is a change to a person’s cost percentage, which is dependent on a change to the care percentage. If notice of the care change is more than 28 days after the change occurred, the revocation of the determination takes effect from the day before the notification day for the person with increased care, and from the day before the care changed for the person with reduced care.

5. Section 54G of the Act is applicable where a person was to have regular care of a child during a care period and has had less than regular care of the child, a determination has been made that the other responsible person had at least regular care of the child, and the other person notified of the care change within a reasonable period. Subsection 5(2) of the Act provides that a person has ‘regular care’ of a child if the person has at least 14% but less than 35% care of the child.

6. The Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act) provides for the date of effect of objections where care percentage decisions are allowed. Section 95N provides that if an application to the Tribunal was made more than 28 days after notice of the care percentage decision was given, and the Tribunal varies or substitutes the objection decision, then the Tribunal decision takes effect on and from the day the application for review by the Tribunal was first made, unless there are special circumstances to extend the 28 day period.

What information has been provided in relation to the care of the child?

1. The father advised that in January 2023, the child moved out of home and lived with the sister until January or February 2024, when the child went back home to live with the mother. He asserted the child was very independent and may have been stressed after the parents separated. The child had stopped going to school, and as the sister was a [Occupation 1] and lived close to the child’s school, the child went to live with her. The father said that at the time, he was telling the child to return home, but that did not occur until a year later. The child lived with the sister rent free and did not return to the mother’s care during that period, not even on the weekends as alleged by the mother, and she did not pay for anything or cook for the child. The father advised that he owns a [shop] just around the corner from where the sister’s home is, and he would give the sister and the child food. He said they have [number] children, and they all come to the shop to eat, including the child after school with friends. He even paid the child minimum wage to work for him after school.

2. The mother confirmed the child moved into the sister’s unit in February 2023 for a year as it was close to the child’s school, the siblings were close, and the sister helped the child with school work. She confirmed that the child did not go to school in 2022 and thought the child may have been upset about the parents’ separation and may not have wanted to stay home as the father was no longer there and did not want to see her sad. When the child moved in with the sister, the child started going to school again. The mother advised that initially she was calling the child and giving money to the sister to pay for the child’s needs, but the child refused to take any money. She sometimes brought food to the sister’s home as she wanted to support the child and confirmed that the child was also eating at the father’s shop. She stated that she was not disputing that she did not have 100% care, noting both parents did not have care at that time. In the first few weeks after the child left her care, she was only giving the child attention, but not looking after the child as the sister was and noted the child could look after themselves.

3. In relation to the date the child left her care, the mother informed Child Support in response to the change of care notification by the father that the child had moved in with the sister on 14 February 2023, and then when making her objection, she advised that the child was living with the sister from 26 February 2023. At the hearing, the mother advised that she would check and confirm the specific date, and I allowed her time after the hearing to do this. The mother provided a statutory declaration dated 3 July 2024 stating that the child left her care on 26 February 2023 and returned to her care in late December 2023. She noted that in the first five to six weeks, she would call to check on the child every day to make sure the child was attending school. After that time, she stopped calling but would check on the child weekly.

4. I note that at the hearing, the mother said that she does not want to receive any child support payments. She said that she did not want to upset anyone or affect the child. She was advised that she would need to contact Child Support about ending the child support case if that was what she intended.

5. In relation to the delay in seeking review, the father advised that he was overseas and did not receive any letters. When asked about the call he made on 21 September 2023, he said that was about 0% care. The hearing papers indicate that during this call, the father was informed about the objection decision, that it had been mailed to him, and that the father acknowledged and elected Child Support to collect the amounts he had overpaid.

Has there been a change to the care of the child?

1. I am undertaking a review of the applicable care percentage afresh and am required to consider the actual care undertaken. While undertaking this task, the Act provides that actual care may be worked out based on the number of nights the child was, or was likely to have been, in a parent’s care.

2. At the hearing, the father advised that the child was living with the sister from January 2023. He notified Child Support that the child had left the mother’s care in mid-February 2023. The mother had initially told Child Support the child left her care on 14 February 2023, but in her objection said this occurred on 26 February 2023. Given the father has not provided a specific date for the change of care and the mother has provided a statutory declaration that the child left her care on 26 February 2023, I accept that this is the date the change of care occurred.

3. The information before me indicates that when the child left the mother’s care, the child was living with the sister to attend school, as the child had not done so in 2022. While the mother initially tried to keep in contact with the child and tried to provide food and give the sister money to pay for things for him, she stopped as the father was providing food from his [shop] and the child was refusing to take any of her money, but continued to check whether the child was attending school. At the hearing, it became apparent that there was no dispute that the child was in neither party’s care during the care period, and that the child has now returned to the mother’s care since late December 2023 or January/February 2024. I note that it is still not clear when the child returned to the mother’s care, but Child Support must be notified of any subsequent changes of care or if the child support liability is to cease, as separate processes will be undertaken.

4. In light of the above, I find that the requirements of section 49 are met and the mother and the father had 0% care of the child from 26 February 2023.

5. I note that there were no existing care arrangements, and therefore section 51 of the Act is not applicable. Further, I do not consider notification of the care change was made within a reasonable period as the father had notified Child Support of the care change three months after it had taken place. Therefore, section 54G does not apply.

6. As the father notified of the care change more than 28 days from when care changed, pursuant to subsection 54F(3) of the Act, the date of revocation of the determination of the existing percentage of care takes effect is 25 February 2023.

When does the new care determination take effect?

26. I have considered whether there were special circumstances pursuant to subsection 95N(2) of the Registration and Collection Act, preventing the father applying to the Tribunal within 28 days after the notice of the objection decision.

27.  While the father has said that he was not aware of the decision as he had been overseas, a phone call he had with Child Support on 21 September 2023 indicates that he was made aware of the decision. In light of this, I am not satisfied there are special circumstances for the father’s delay in making the application for review. I therefore find that pursuant to subsection 95N(1) of the Registration and Collection Act, my decision is to take effect from 12 April 2024, being when the father lodged his application for review with the Tribunal.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the existing care determination is revoked on 25 February 2023 and a new care determination is made that Mr Keenum had 0% care and Ms Keenum had 0% care of the child from 26 February 2023.

The Tribunal decides not to make a determination under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 and so the Tribunal’s decision has effect from 12 April 2024.