Kelane and Hiland (Child support)

[2024] AATA 2527

Kelane and Hiland (Child support) [2024] AATA 2527 (30 May 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/BC027675

APPLICANT:  Mr Kelane

OTHER PARTIES:  Child Support Registrar

Ms Hiland

TRIBUNAL:Member K Hamilton

DECISION DATE:  30 May 2024

DECISION:

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

• Ms Hiland’s percentage of care determination of 100% care is revoked from 23 November 2023; and

• Ms Hiland’s percentage of care of the child [Child 1] is 0% from 24 November 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – change to the pattern of care – existing percentage of care determination revoked – new determinations made – 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 omitted 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 Kelane is the father of [Child 1] (aged 16).  [Child 1] has been in the care of her grandmother, Ms Hiland, for a number of years since she was a young child.  [Child 1’s] mother, Ms Kelane, has had no care of [Child 1] since she was young.

2. A Child Support case was first registered on 20 January 2022.  Ms Hiland was recorded for Child Support purposes as having 100% care, Mr Kelane 0% care and Ms Kelane 0% care of [Child 1].

3. On 14 August 2023, Mr Kelane advised Services Australia – Child Support (Child Support) that [Child 1] was no longer living with Ms Hiland.  Child Support’s notes record this change in care as occurring from 14 June 2023.

4. On 12 October 2023, Child Support made a decision that Ms Hiland, Mr Kelane and Ms Kelane each had 0% care of [Child 1] from 14 June 2023.

5. Ms Hiland objected to that decision on 30 October 2023.  On 18 March 2024, a Child Support objections officer allowed her objection, and decided not to revoke the existing percentage of care determination of 100% to Ms Hiland, and 0% to Mr Kelane and Ms Kelane.  Mr Kelane then applied to the Administrative Appeals Tribunal (the Tribunal) for further review.

6. I heard the matter on 30 May 2024.  Mr Kelane and Ms Hiland participated by telephone and gave evidence. 

ISSUES

1. 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).

2. 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.

3. 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:[1] section 54F in Division 4, Subdivision C of the Assessment Act.

   [1] Section 54G does not apply in this matter as Mr Kelane and Ms [Kelane] both had no care of [Child 1].

4. 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.

5. 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 (subsection 5(3) of the Assessment Act).

6. 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.

7. Care is generally 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 in limited circumstances a person may retain care of a child who is not living with them. Consideration will be 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.[3]

   [3] See the Guide at topic 2.2.1; see also Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959

8. 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 Ms Hiland?

   ·      What is the date of the revocation of the pre-existing percentage of care determination and the date of application of the new percentage of care determination for Ms Hiland?

CONSIDERATION

1. Ms Hiland’s evidence to the Tribunal was that [Child 1] moved out of her home in around March 2023, and began living with her boyfriend’s family ([Family A]).  However, Ms Hiland continued to provide ongoing financial support to [Child 1], including paying $600 per month to [Ms A] as board, paying [Child 1’s] school fees, and paying for other items such as [Child 1’s] phone, shoes, clothing, uniforms and school supplies.  Ms Hiland remained [Child 1’s] guardian and primary contact for school, attending interviews at the school and being the first point of contact if [Child 1] was in trouble or sick at school.  Ms Hiland also picked [Child 1] up from school at least 3 times a week to drive [Child 1] to her part-time job.

2. Ms Hiland told the Tribunal that she paid [Child 1’s] board to [Ms A] for the entire period up to 7 November 2023, and her school fees up to 23 November 2023. 

3. Mr Kelane agreed that Ms Hiland had financially supported [Child 1] and that she should be recorded as having 100% care of [Child 1] on that basis up until 23 November 2023. 

4. However, Mr Kelane said that since that time, he has been responsible for paying [Child 1’s] board, school fees and other expenses.  Mr Kelane’s concern was that Child Support were continuing to assess him as being required to pay Child Support to Ms Hiland after November 2023, when he had advised them, and it was not disputed, that Ms Hiland had ceased financially supporting [Child 1] and no longer had care of [Child 1].

5. After 23 November 2023, Ms Hiland agreed that she has not provided any ongoing financial support to [Child 1] and has had limited contact with her.  Ms Hiland accepts that she therefore should be recorded as having 0% care of [Child 1] after 23 November 2023.

6. It is unfortunate that this matter has had to progress to review by the Tribunal when there appears to be no real dispute between the parties about the care arrangements and financial responsibility for [Child 1].

7. I note that on 8 November 2023, Child Support records a contact with Mr Kelane in which he advised that he had commenced paying board to [Ms A] for [Child 1] and was paying [Child 1’s] school fees and all her other expenses.  Mr Kelane also advised that [Child 1] was physically residing with him for at least part of each month.  Ms Hiland’s contact with Child Support on 11 January 2024 confirmed that she ceased financially supporting [Child 1] in November 2023 and that Mr Kelane was subsequently paying board for [Child 1] to [Ms A].  It is appropriate in the circumstances to treat Ms Hiland’s contact on 11 January 2024 as notification to Child Support of the change in [Child 1’s] pattern of care that occurred in November 2023.

8. I am satisfied on the evidence of both parties that Ms Hiland had 100% care of [Child 1] until 23 November 2023. From 24 November 2023, there was a change in the pattern of care with Ms Hiland having 0% care of [Child 1] from that date. Accordingly, I find, pursuant to section 54F of the Assessment Act that Ms Hiland’s pre-existing percentage of care of 100% must be revoked from 23 November 2023, and that a new percentage of care determination of 0% for Ms Hiland applies from 24 November 2023.

9. There is no change to Ms Kelane’s percentage of care of [Child 1] as being 0% care.

DECISION

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

• Ms Hiland’s percentage of care determination of 100% care is revoked from 23 November 2023; and

• Ms Hiland’s percentage of care of the child [Child 1] is 0% from 24 November 2023.