Kemp and Gilliam (Child support)

[2023] AATA 4287

Kemp and Gilliam (Child support) [2023] AATA 4287 (24 November 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/MC026336

APPLICANT:  Miss Kemp

OTHER PARTIES:  Child Support Registrar

Mr Gilliam

TRIBUNAL:Member S Irvine

DECISION DATE:  24 November 2023

DECISION:

The decision under review is varied to reflect that Mr Gilliam and Miss Kemp each had 50% care of [Child 1] from 4 January 2022, and the Child Support Registrar was notified of the change in care on 18 January 2023.

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 varied

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. Miss Kemp and Mr Gilliam are the parents of [Child 1], born in 2010.

2. A child support assessment for [Child 1] was first made on 14 February 2011. Since that date, the care that has been reflected in the child support assessment is 100% to Miss Kemp.

3. On 27 March 2023, Services Australia – Child Support (Child Support) made a decision to revoke the existing percentage of care determinations and replace them with new determinations that Miss Kemp has 50% care with effect in the child support assessment from 4 January 2022, and that Mr Gilliam has 50% care from 4 January 2022, but with effect in the child support assessment from 27 February 2023.

4. On the same day, 27 March 2023, Miss Kemp objected to the Child Support decision. On 7 June 2023 Child Support disallowed her objection.

5. On 3 July 2023 Miss Kemp applied to the Administrative Appeals Tribunal for a review of Child Support’s decision.

6. Miss Kemp’s application was initially listed for hearing in the Tribunal on 9 November 2023. On that day, Mr Gilliam attended by telephone, but the Tribunal was unable to reach Miss Kemp on the telephone at the time of the hearing. Consequently the hearing was rescheduled and was held on 24 November 2023. At the time of the hearing on 24 November the Tribunal was again unable to reach Miss Kemp by telephone. As I am satisfied that Miss Kemp received proper notice of the date and time of hearing, I proceeded with the hearing in her absence. Mr Gilliam attended the hearing by telephone and gave affirmed evidence. I have also had regard to documents submitted by the Child Support Registrar and numbered 1 to 155. Mr Gilliam confirmed at the hearing that he had received those documents.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988. Unless otherwise specified, legislative references in these Reasons for Decision are references to the Assessment Act.

2. The issues which arise in this case are:

   ·      Should the existing care determinations of 100% to Miss Kemp and 0% to Mr Gilliam be revoked, and if so from what date?

   ·      Should new care percentage determinations be made and what should those determinations be?

CONSIDERATION

1. Subsection 54F(1) of the Act sets out circumstances in which a determination of a percentage of care must be revoked. Specifically, a determination must be revoked pursuant to section 54F if:

   ·      the care of the child that is actually taking place does not correspond with a parent’s existing percentage of care for the child;

   ·      a new care determination corresponding with the parent’s actual care would change that parent’s “cost percentage” for the child;

   ·      section 54G does not apply; and

   ·      subsection 54F(2) applies.

2. In this case I am satisfied that section 54G does not apply, because that section can only apply if, prior to the change under consideration, both parents had a care percentage determination of at least regular care (or 14% care) for the child, which is not the case here. I am also satisfied that subsection 54F(2) applies.

3. The question to be determined is whether the care of [Child 1] that has actually taken place is different from the existing care percentage determinations of 100% to Miss Kemp and 0% to Mr Gilliam.

4. The documents provided by Child Support indicate that Mr Gilliam contacted Child Support on 18 January 2023. According to the call record provide by Child Support, he advised that there had been a change in the care arrangements for [Child 1] when Mr Gilliam stopped working on 4 January 2022. The details recorded were that he has had care of [Child 1] every weekend for Friday and Saturday nights, and sometimes on a Sunday night, and that he also sometimes has overnight care of him during the week. He also said that he had had care of [Child 1] for a week during the mid-term school holidays, and for periods during the Christmas school holidays.

5. The records from Child Support indicate that it attempted to contact Miss Kemp about the notification of a change in care, but was unable to do so, and so made its decision without Miss Kemp’s input.

6. On 27 March 2023, Child Support records indicate that Miss Kemp objected to the care decision, stating that Mr Gilliam has some care of [Child 1], and the pattern was currently Friday and Saturday nights every fortnight and sometimes on a Sunday night. Child Support attempted to contact Mr Gilliam to discuss the objection but was unable to do so. The objections officer decided to affirm the care decision.

7. At the hearing, Mr Gilliam said that he kept diaries and he made a note in his diary each time [Child 1] came to stay with him. According to his records, [Child 1] was with him for two or three nights every weekend during the period from 4 January 2022 to the end of December 2022, and would also frequently stay for extra nights. He also spent at least half of each school holidays in Mr Gilliam’s care. Overall, he was in Mr Gilliam’s care for around half the nights through that year.

8. Mr Gilliam also said that his care of [Child 1] is ongoing, and that pattern has never really changed.

9. I am satisfied on the basis of the evidence given by Mr Gilliam, which I note is consistent with the information he provided to Child Support in February 2023, that Mr Gilliam did have approximately 50% care of [Child 1] from 4 January 2022. As this is different from the care determination that was in place prior to that change, I am satisfied that the previous care determination of 100% to Miss Kemp and 0% care to Mr Gilliam must be revoked.

10. Subsection 54F(3) of the Act provides that where a care determination is revoked under section 54F, the date of revocation depends on whether the change in care was notified within 28 days of the care change. According to the documents provided by Child Support, Mr Gilliam contacted Child Support on 18 January 2023 to discuss [Child 1’s] care. He indicated in that call that Child Support’s care records were incorrect. I am satisfied that Mr Gilliam’s phone call on 18 January 2023 was a notification that the care determinations of 100% to Miss Kemp and 0% to Mr Gilliam were incorrect.

11. As the notification was more than 28 days after the change of care day, being 4 January 2022, paragraph 54F(3)(b) provides that the existing care percentage for the parent whose care has increased (in this case Mr Gilliam) is revoked the day before the day of notification, and the existing care percentage for the parent whose care has decreased (in this case Miss Kemp) is revoked the day before the change of care day.

12. When a care determination is revoked, section 50 of the Act provides relevantly that a new care determination must be made, and the new care determination must be in accordance with the care of the child that is actually taking place.

13. I find that from 4 January 2022 the actual care of [Child 1] was 50% to Mr Gilliam and 50% to Miss Kemp, and I make new care determinations accordingly.

14. Section 54B of the Act provides relevantly that the new care determination for each parent applies in the child support assessment from the day after the previous determination is revoked. This means that Miss Kemp’s new care percentage of 50% will apply from 4 January 2022, and Mr [Child 1’s] new care percentage of 50% would ordinarily apply from 18 January 2023.  

15. However, according to the documents provided by Child Support, a further care determination has been made in this matter, so that the child support assessment now reflects that [Child 1] has been in Miss Kemp’s 100% care from 1 January 2023. It was evident at the hearing that Mr Gilliam does not agree that he has had 0% care of [Child 1] since 1 January 2023, and that in fact his view is that he has continued and still continues to have 50% care of [Child 1].

16. As discussed with Mr Gilliam at the hearing, the Tribunal is only able to review a decision if there has been an objection to that decision within Child Support, and a decision has been made by an objections officer. For that reason I am unable to consider the decision about [Child 1’s] care from 1 January 2023, however Mr Gilliam can object to that decision separately if he wishes to do so.

17. Because of the new care decision that has been in effect since 1 January 2023, the effect of my decision will be the same as the effect of the decision under review, notwithstanding that I have found the date of notification of the care change was 19 January 2023 and not 27 February 2023.

DECISION

The decision under review is varied to reflect that Mr Gilliam and Miss Kemp each had 50% care of [Child 1] from 4 January 2022, and the Child Support Registrar was notified of the change in care on 18 January 2023.