Kenyon and Hitchens (Child support)

[2021] AATA 1979

Kenyon and Hitchens (Child support) [2021] AATA 1979 (8 April 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC020225

APPLICANT:  Ms Kenyon

OTHER PARTIES:  Child Support Registrar

Mr Hitchens

TRIBUNAL:Member K Dordevic

DECISION DATE:  8 April 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – whether care was occurring for older child leaving the home – refusal to revoke the existing percentage of care determinations – 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 Kenyon and Mr Hitchens are the parents of one child, [Child 1] (aged 16 years). This application concerns the child’s care arrangements from 6 April 2020. 

2. A child support assessment was registered with the Department of Human Services, now Services Australia – Child Support (the Agency), from 18 October 2017. The child’s care was recorded as 100% to the father and 0% to the mother from 19 August 2019.

3. On 22 April 2020 the mother notified that there was a change to the child’s care arrangement from 6 April 2020 whereby each parent had 0% care of the child. On 25 June 2020 the care application was refused. The mother’s timely objection was disallowed on 20 October 2020.  She sought review of that decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) on 11 November 2020.

4. The matter was heard on 10 March 2021. The mother and father appeared by conference telephone. The Child Support Registrar elected not to be added as a party to the proceedings. In reaching its decision the tribunal considered the sworn evidence of the mother and father as well as the documentation provided by the Agency (folios 1 to 138) and by the father (B1 to B16).

5. The matter was deferred. The tribunal issued an order, pursuant to subsection 95H(1) of the Child Support (Registration and Collection) Act 1988 (the Registration Act), to [Hospital 1] to provide the following information by 29 March 2021:

• A statement regarding whether the father was contacted on 5 and/or 6 April 2020 regarding [Child 1]’s presentation at the hospital and regarding her discharge arrangements;

• All documentation regarding the father’s response to requests to collect [Child 1] from the hospital; and

• Any other relevant information or documentation regarding [Child 1]’s care arrangements upon discharge.

1. A response was received from [Hospital 1] on 7 April 2021 (folios D1-8). The tribunal reached its decision on 8 April 2021.

ISSUES

1. The statutory provisions relevant to this review are outlined in the Child Support (Assessment) Act 1989 (the Act) and the Registration Act.

2. The tribunal must determine the parents’ respective care percentages from 6 April 2020.

CONSIDERATION

1. Relevant to this matter, section 50 of the Act requires the primary decision-maker to consider the actual or likely pattern of care, by reference to a care period considered appropriate, having regard to all the circumstances. The primary decision-maker’s task is to determine the pattern of care based on actual care at the time of notification and the likely care thereafter.

2. The tribunal’s task on review is the same. There is a clear temporal element in reviewing care percentage decisions. At first instance, and on review, the questions are the same: What was the pattern of care up until the date of notification? And, what was likely to occur thereafter? If there is a divergence from what was considered likely to happen, a parent can notify the Agency and a new care determination can be made.

3. The tribunal finds that in 2010 the Family Court of Australia ordered that the child reside with the mother and the father shall have regular alternate weekend and school holiday care. The care arrangement changed in August 2019, whereby the child lived full-time with the father.

4. The Agency’s record indicates that on 22 April 2020 the father confirmed, following the mother’s care notification, that the child was in the maternal aunt’s care and would be there for a few weeks. He disagreed that this was a permanent change to the child’s care arrangements.

5. The mother’s submissions are summarised as follows. The child presented at hospital on 5 April 2020, after the father had asked her to leave his home. The hospital staff were unable to contact the father to arrange for the child to be discharged into his care. The child was also refusing to return to his care, stating that she was scared. Eventually, after being unable to contact the father, it was organised that the child was discharged into her maternal aunt’s care ([Ms A]). The child was cared for by her aunt for three weeks and during that time the father did not provide any financial (or other) support to the child. By way of example, it was the aunt who secured a mental health plan for the child and attempted to secure appointments with a psychologist, meeting any gap payments for such services. The mother also asserted that the child did, and continues to, call her frequently asking for money, as the father refuses to provide her with financial support. She is concerned that she is funding, through her child support payments, the father’s lifestyle and not the child’s care.

6. The father’s reply to the mother’s submissions is as follows. The child has never been asked to leave his home though she frequently makes such claims. Instead, the child gets extremely emotional, yells, screams and “gets violent” and then storms out, telling others that she was kicked out. She exhibits similar behaviour at school and other settings, resulting in suspensions and the current involvement in the juvenile justice system. The father recalled that on the day of her admission to [Hospital 1] the child had an argument with his wife and left the home and refused to return. He was later advised that she was in hospital. He disagreed with the mother’s submission that the child was fearful to return to his home; he asserted that it was a fabrication by the child in order to manipulate others. He could not recall any specifics regarding contact with the hospital, but states that if he was not contactable, as the mother contends, it was likely because he turned off his telephone between 10 pm to 5.30 am when he sleeps. He did recall discussing with the hospital the child’s care arrangements on 6 April 2020, agreeing that she would be discharged into her maternal aunt’s care to allow her time to cool down. He denied that this was a change to the care arrangements. Rather, he states it was an interim measure during the school holiday period to ensure that the child was in a safe place until they could negotiate her return to his home. He could not recall if he provided any financial support to the maternal aunt to meet the child’s care costs, but did not think he did, stressing that he was not asked to do so. He cannot recall the exact date the child returned to his care. During the time that the child was in the maternal aunt’s care he was still in contact with the child’s juvenile justice case manager.

7. The tribunal next considered the social work summaries provided by [Hospital 1] regarding the child’s presentation at the paediatric emergency department, following her being found in a local park. It states that the child was known to the hospital, due to her mental health and safety concerns (including self-harm, suicidal ideation, regular absconding and a complex trauma history) and was awaiting an intake interview to a youth health service, initiated by her juvenile justice case worker. The child disclosed at interview that her stepmother threatened that if she left the home she would not be allowed to return. She decided to leave. She initially refused to return to her father’s home upon discharge. The father was contacted by the social worker and he stated that he is agreeable to the child returning home, however she must follow the house rules and not abscond. Apparently since her court-ordered curfew was lifted, the child would frequently leave the home, and this was causing conflict. The father and child spoke, with the father reiterating that she is welcome to come home, but must not abscond. The child refused to return. The father was asked to consider other accommodation options. The social worker noted that there were no concerns regarding the child returning to the father’s care, and that the father appears to be putting “healthy boundaries in place”, to which the child is not adhering.

8. Consistent with the mother’s evidence, the social work notes indicate that following the initial contact with the father, multiple calls were later made to the father and voicemails left requesting that he return the call. During this period when the father was not contactable, the child stated that she was then willing to return home. The child then slept and advised the social worker upon waking late in the morning of 6 April 2020 that her father had sent her an SMS message stating that “I hope you will decide to come home”. The social work notes state that the mobile number that the father was contacted and voicemail messages were left on overnight, was incorrect. A message was then left on his correct number. The father then called back and stated that he had spoken to the child, who suggested that she stay with her aunt. He agreed that this is a suitable arrangement. The social worker record states “he hopes that by allowing [Child 1] space to stay at her Aunty’s at this time, that they will be able to come to a resolution and can have further conversations once everything has cooled down”. The child was discharged into her aunt’s care later that afternoon.

9. After having the benefit of the contemporaneous social work record, the tribunal is not persuaded that there was a change to the child’s care arrangements on 6 April 2020, as the mother contends. Though the child was discharged into her maternal aunt’s care, the tribunal is satisfied that this was on a temporary basis with the intention that the child return to the father’s care in the short term. The maternal aunt does not dispute that she cared for the child for a three-week period, abruptly ending when the child refused to abide by house rules and left her home. On 22 June 2020 the maternal aunt verbally reported to the Agency that the child had returned to her father’s care on 1 May 2020. In a letter dated 1 November 2020 the maternal aunt declared that from the second week of May 2020 onwards the child was living with a friend in [City 1]. No mention was made about whether the child returned to her father’s care in the interim between when she left the aunt’s care and the second week of May 2020. The tribunal prefers the maternal aunt’s statement on 22 June 2020 regarding the child’s care, given its proximity to the events under review, and so is satisfied that the child returned to her father’s care on 1 May 2020.

10. The Child Support Guide states (at Chapter 2.2.2) that a temporary one-off block of care would generally need to be at least four weeks duration in order for a new care percentage determination to take place. The tribunal concludes that there was no change to the child’s pattern of care on 6 April 2020, notwithstanding the fact that she temporarily resided with her maternal aunt for a period of about three weeks. The tribunal is of the view that the father’s failure to provide the aunt with any financial support to meet the child’s care costs during this temporary period does not invalidate such a conclusion. Thus, the Agency correctly refused the mother’s care change application.

11. For completeness, the tribunal notes that the mother asserts that there have been subsequent changes to the child’s care arrangements. She has provided an undated SMS screenshot, apparently sent on 29 June 2020, in which the child states that she had moved into a new home on 17 June 2020. The mother states that this is evidence that the father asked the child to leave his home on 17 June 2020 and that his care ceased at or before this time. The tribunal is not persuaded that this undated screenshot alone does in fact establish this to be the case. Equally, the tribunal is not persuaded that an undated [social media] post by the child, stating that “within the past year i have only been home for a few months” (at folio 16), establishes that the father has ceased caring for the child, particularly in a context where the child frequently absconds and alternative temporary placements breakdown as a result of the child’s behaviour. In any case, each care change event must be reported to the Agency and these alleged subsequent care changes are not before this tribunal.

DECISION

The decision under review is affirmed.