Kepler and Kepler (Child support)

[2023] AATA 1656

Kepler and Kepler (Child support) [2023] AATA 1656 (27 April 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/SC025501

APPLICANT:  Ms Kepler

OTHER PARTIES:  Child Support Registrar

Mr Kepler

TRIBUNAL:Member H Schuster

DECISION DATE:  27 April 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that, in relation to [Child 1], the interim care determination which commenced on 25 July 2022 continued to apply until 22 January 2023, with Ms Kepler having 73% care and Mr Kepler having 27% care of [Child 1]. From 23 January 2023 Ms Kepler’s care percentage reduced to 0% and Mr Kepler’s care percentage increased to 100%.

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 - court orders not complied with - reasonable action taken - interim period applied - 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 and Ms Kepler are the parents of [Child 1] (born 25 June 2009) and [Child 2] (born 27 April 2011). At the time of the original decision Mr Kepler was the parent liable to pay child support.  This review is about the percentage of care in relation to [Child 1] from 11 October 2022.

2. From 2018 to 2022 Services Australia – Child Support (Child Support) determined that Ms Kepler had a percentage of care of 73% and that Mr Kepler had a percentage of care of 27% for [Child 1] based on court orders made by consent on 26 March 2018.

3. On 19 August 2022 Mr Kepler contacted Child Support and advised that his care percentage for [Child 1] had increased from 25 July 2022 to 38%. Ms Kepler advised that the change in care had occurred without her consent, Mr Kepler was withholding care and she was seeking legal advice about pursuing care according to the court orders.

4. On 26 September 2022 Child Support accepted that a change in care had occurred and determined Ms Kepler’s care percentage for [Child 1] was 62% and Mr Kepler’s care percentage was 38% from 25 July 2022.

5. Ms Kepler objected to the decision. On 19 December 2022 an objections officer ultimately allowed the objection. The objections officer found that the actual care percentages for [Child 1] from 25 July 2022 were 62% care for Ms Kepler and 38% for Mr Kepler. However, it was found that Ms Kepler was prevented from having care according to the court orders against her wishes and was taking reasonable steps to have the care arrangement returned to the pattern dictated by the court orders. An interim care determination was made that for a period of 26 weeks from 25 July 2022 to 22 January 2023 Ms Kepler’s care percentage should remain at 73% and Mr Kepler’s care percentage remain 27% during that period. Neither party applied to the AAT for review of that determination.

6. On 21 October 2022 Mr Kepler contacted Child Support and advised that his care percentage for [Child 1] was 100% from 10 October 2022. On 2 December 2022 Child Support accepted that a change of care had occurred and determined Mr Kepler had 100% care of [Child 1] from 11 October 2022.

7. On 2 December 2022 Ms Kepler objected to the decision on the basis that she had not agreed with the change in care in October 2011 and was continuing to pursue action to have the care restored according to the court orders.

8. On 25 January 2023 Ms Kepler’s objection to the decision made on 2 December 2022 was disallowed. The objections officer determined that there had been a change of care on 11 October 2022 and that with effect from that date Ms Kepler’s care for [Child 1] was 0%, while Mr Kepler had 100% care.

9. On 27 January 2023 Mrs Kepler made an application to the Administrative Appeals Tribunal (the Tribunal) for an independent review of the decision. On 21 March 2023 Ms Kepler and Mr Kepler participated in a hearing of the application by telephone. At the request of Ms Kepler, the Tribunal spoke to each party separately, giving each party an opportunity to respond to submissions made by the other. The making of the decision was deferred to allow the parties to provide any further material or submissions. The parties gave sworn evidence. In making its decision the Tribunal considered the documents provided by the Department, which were also sent to both parties (172 pages), as well as documents as provided by the parties (A1–2, B1–B8).

CONSIDERATION

10.The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act).

Has there been a change in the care of [Child 1]?

1. The parties did not dispute that the care of [Child 1] first changed in July 2022 and the actual care changed again in October 2022. In July, in addition to the care pattern set out in the court order, [Child 1] spent an extra night of care with Mr Kepler from 25 July 2022. From 11 October 2022 onwards, apart from two instances of weekend care, [Child 1] spent no overtime care with Mrs Kepler.

2. The parties also did not dispute that Ms Kepler disagreed with the change in care and ultimately court proceedings were commenced which resulted in a new order, made by the Federal Circuit and Family Court on 21 March 2023 for Mr Kepler to have 100% care of both children.

3. Ms Kepler’s submissions were that [Child 1] was autistic and benefited from fixed routines. Until July 2022 the court orders made in 2018 were followed by the parties. In July 2022 [Child 1] started spending Monday nights with his father, against her wishes, and stopped attending swimming lessons arranged for him. She strongly disagreed with the change and said she sought legal advice and applied for legal aid in the same month.

4. Her legal aid application was initially rejected, and she had to appeal the decision. She was eventually granted legal aid in September for mediation. In October 2022 Ms Kepler’s legal representative from [the law firm] wrote to Mr Kepler objecting to the contravention of the court orders. In November 2022 the parties attended a mediation which failed. Ms Kepler made an application to the Federal Circuit and Family Court and a hearing occurred in March 2023 which resulted in the court assigning 100% care of both children to Mr Kepler.

5. She did not dispute that from 11 October 2022 onwards, apart from two instances of weekend care, [Child 1] ceased to stay with her on an overnight basis. That is, she agreed that the actual care had changed again in October 2022 to 0%, but against her will.

6. Mrs Kepler was of the view that the interim care determination made by the objections officer in December 2022 should be maintained to the end of the period, as she did not consent to either the July nor October 2022 changes in care for [Child 1] and at all times took steps to have the care returned to the court orders.

7. Mr Kepler told the Tribunal that the change in care for [Child 1] occurred because some of the activities Ms Kepler had organised for [Child 1], particularly the swimming lessons, were not age appropriate for him and [Child 1] did not feel happy or comfortable. He is tall for his age and his swimming lessons were with much younger children. On that basis the care initially changed in July 2022. It is not in dispute that [Child 1] needs significant support due to his autism and Mr Kepler said [Child 1] was now engaged in activities which are appropriate for him and he is happy to attend.  

8. The change in October 2022, when [Child 1] stopped staying with his mother on an overnight basis, was a further development which Mr Kepler said was initiated by [Child 1]. Mr Kepler was of the view that [Child 1] had simply outgrown the orders made in 2018 and sought to have more control.

9. Mr Kepler agreed that Ms Kepler had at all relevant times asked for care to be returned to the pattern set up by their court orders but that he resisted these efforts to support [Child 1]. He did not agree that Ms Kepler had taken any formal legal steps in July 2022. He was doubtful of her claim that she had sought but been denied legal aid at that time.

10. Mrs Kepler, however, provided evidence from Legal Aid which confirmed she had applied for legal aid initially on 28 July 2022, and a grant was made on 29 August 2022. She made a further application on 11 October 2022 to commence proceedings to seek a recovery order which was granted on 2 November 2022.

11. As noted above, pursuant to court orders made on 21 March 2023, Mr Kepler now has 100% care of both children, which is not disputed by Ms Kepler.

12. The Tribunal finds that there was a change in actual care of [Child 1] on or about 25 July 2022 and that from 11 October 2022 – apart from instances of weekend care in November 2022 – did not spend any nights with his mother, though he continued to have contact with her.

13. The Tribunal finds that there was a change in actual care in relation to [Child 1] which first occurred from 25 July 2022 and a further change occurred in October 2022.

14. The Tribunal is satisfied that from 25 July 2022 Ms Kepler’s actual care of [Child 1] decreased and her care percentage reduced from 73% to 62%, while Mr Kepler’s actual care increased from 27% to 38%. The Tribunal also finds that Ms Kepler’s actual care of [Child 1] reduced to 0% from 11 October 2022.

The revocation and interim care determination in effect from 25 July 2022

25.Although no application has been made by the parties for a review of the objection decision of 19 December 2022, which related to the change of care in July 2022, the Tribunal finds it necessary to examine the care determination made in respect of the change which took place at that time, because it has a direct bearing on the making of subsequent determinations.

1. The percentage of care for the purpose of a child support assessment is determined under Division 4 of Part 5 of the Act and must generally be based on the actual care a parent has of the child. Generally, under section 54A of the Act, a person’s care percentage is worked out by looking at the pattern of care and the nights of care each parent has in relation to the child during a “care period”.

2. If the Registrar is notified that the actual care in relation to a child does not reflect the assessed care percentages, and the change in care would result in a change to the cost percentage, the old care percentages must be revoked under section 54F of the Act.

3. The decision maker is required to determine whether each party has a “pattern of care” in relation to the child and, if so, a new care percentage is determined under section 50 of the Act. If one party has no care, under section 49 of the Act the person’s care percentage must be 0%. The percentage of care “must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person had, or is likely to have, during the care period”.

4. However, under section 51 of the Act, where a new percentage of care must be determined, and the care does not comply with a written care arrangement, such as a court order, and the person with reduced care is taking reasonable action to ensure that the care arrangement is complied with, an interim care determination may be made. This has the effect of maintaining, for an interim period, determined under section 53A of the Act, the care percentages set up by the court orders rather than using the actual care percentages in the child support assessment. At the end of the interim care period, the care percentages would then be changed to reflect the actual care.

5. In this case, it is not in dispute that the care for [Child 1] had occurred in accordance with the court orders made in 2018 until 25 July 2022 when there was an increase in care by Mr Kepler which he notified Child Support of by 19 August 2022. It is not disputed that Ms Kepler strongly disagreed with the change in care. Mr Kepler confirmed that she had communicated with him and asked for the care to be returned and that he took the view that it was not in [Child 1]’ interest for care to return to the pattern set up by the court orders. The Tribunal is satisfied that Ms Kepler took action by seeking legal aid from 28 July 2022 and continued to seek legal aid and resist the change in care at all relevant times.

6. The Tribunal agrees that, in the circumstances, Child Support was required to make an interim care determination under section 51 of the Act from the date on which the care changed, that is 25 July 2022. The Tribunal is also satisfied that pursuant to item 2 in the interim period table of section 53A of the Act, that the end date of the interim period under that table was 22 January 2023, that is 26 weeks after the change of care day.  

7. The Tribunal finds that from 25 July 222 an interim care determination was therefore in effect under which the parties’ care percentages were set at the rate determined by the court orders of 2018, that is Ms Kepler had a care percentage of 73% while Mr Kepler had a care percentage of 27%, in accordance with section 51 of the Act.

8. The question is whether the further change on October 2022 required Child Support to revoke care percentages during the interim care period.

Should the existing section 51 care determination for [Child 1] have been revoked in October 2022?

34.The objection decision made by Child Support on 19 December 2022 in relation to the July 2022 change has the effect that the care percentages in relation to [Child 1] in effect on 11 October 2022 were the result of the interim care determination under section 51 of the Act, with 73% care to Ms Kepler and 27% care to Mr Kepler. 

35.Under paragraph 53A(1)(b) an interim care period generally ends at the end of the maximum interim care period, in this case 26 weeks after the change of care day. The interim care period may also end if the care arrangement (that is, the 2018 court orders) ended, or a new written care arrangement is made or the person who wants the care returned to the previous arrangement ceases to take reasonable action.

36.The Tribunal is satisfied that Ms Kepler did not consent to the changes in care with respect to [Child 1] in either July or October 2022, participated in mediation in November 2022 and proceeded to formal legal proceedings in a timely manner in an effort to have the care set up by 2018 court orders reinstated. The Tribunal finds that Ms Kepler continued to take reasonable action during the entire interim care period. No new orders were made during the maximum interim care period. The Tribunal finds that the interim care period in relation to the July 2022 change continued until 22 January 2023.

37.While it is not disputed that there was a further change in care in relation to [Child 1] from 11 October 2022, whether or not a new care percentage is to be determined first requires the decision maker to exercise a power to revoke the care percentages which applied pursuant to section 51 of the Act.

38.The power to revoke a care percentage is provided to Child Support by sections 54F, 54H or 54G of the Act.

39.Section 54G only applies to cases where a person is to have care of a child but does not have care despite the child being made available. It does not apply to this case.

40.Section 54F operates in cases where a change in the care percentage would affect the person’s cost percentage and potentially applies to the October 2022 change in actual care of [Child 1].

41.Subsection 54F(1) of the Act governs the revocation of care determinations made under sections 49 or 50 of the Act (where the care percentage is based on actual care). It does not apply during an interim care period. Subsection 54F(2) does make reference to revoking a care percentage where section 51 applies, but it does not apply if the maximum interim period has not ended, nor does it apply to a change in care which occurs while an interim care period is still in effect.  

42.The maximum interim period in relation to that determination, as worked out using the definition in section 5 of the Act, is 26 weeks from the change of care date. As noted above, the Tribunal is also satisfied the interim care period did not end before 22 January 2023 and as at 11 October 2022 was still in effect. That means, in the circumstances in which the care changed in this case, the interim care percentage in relation to [Child 1] cannot be revoked from 11 October 2022.

43.Section 54H of the Act gives the decision maker a discretion to revoke a care percentage if neither section 54F nor 54G apply, but operates similarly to section 54F of the Act. That is, the care percentages for [Child 1] could not be revoked as a result of the change which happened on 11 October 2022, as an interim care period was in effect at that time.

44.The Tribunal is satisfied that the decision under review must be set aside and instead the interim care percentages continued to apply during the interim care period from 25 July 2022 to 22 January 2023. From 23 January 2023, however, Ms Kepler’s care percentage was 0% and Mr Kepler’s care percentage was 100% for [Child 1].

1. That is, the Tribunal is satisfied that the effective care percentages for [Child 1] from 25 July 2022 to 22 January 2023 were 73% to Ms Kepler and 27% to Mr Kepler.

46.That means, the decision under review is set aside and Ms Kepler’s application is successful.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that, in relation to [Child 1], the interim care determination which commenced on 25 July 2022 continued to apply until 22 January 2023, with Ms Kepler having 73% care and Mr Kepler having 27% care of [Child 1]. From 23 January 2023 Ms Kepler’s care percentage reduced to 0% and Mr Kepler’s care percentage increased to 100%.