Kersey and Noakes (Child support)

[2024] AATA 3935

Kersey and Noakes (Child support) [2024] AATA 3935 (22 July 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/SC027492

APPLICANT:  Mr Kersey

OTHER PARTIES:  Child Support Registrar

Miss Noakes

TRIBUNAL:Member S Letch

DECISION DATE:  22 July 2024

DECISION:

The decision under review is set aside and the matter is sent back to the Child Support Registrar for reconsideration in accordance with the direction that the child support assessment be reconsidered on the basis that:

(a)the child [Child 1] is to be recorded as a relevant dependent child from 23 July 2015 (not from 9 January 2018);

(b)the child [Child 2] is to be recorded as a relevant dependent child from 14 May 2019.

CATCHWORDS 
CHILD SUPPORT – change of assessment – adding a relevant dependent child – 35% care of the two relevant dependent children – decision under review set aside

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 theChild Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

1. This matter concerns a decision by Child Support to record, for the purposes of the child support assessment with Miss Noakes, Mr Kersey’s two relevant dependent children from 9 January 2018 ([Child 1], born 2004) and 14 May 2019 ([Child 2], born 2018), and not from an earlier date. [1]

   [1] Apart from the children of the child support case, [Child 1 and 2] are his only other biological children: folio 135 of the Child Support hearing papers.

2. It is convenient to set out some extracts from the objections officer’s decision dated 29 January 2024 (unedited):

   DECISION UNDER REVIEW

   The decision made on 9 January 2018 to refuse to add two of Mr Kersey s relevant dependents to the existing case.

   Mr Kersey has objected because of the decision to record the care for the two relevant dependents as 35% care to Mr Kersey from 9 January 2018 and 14 May 2019.

   …

   1. Mr Kersey and Miss Noakes have had a registered child support assessment for [Children] since 23 July 2015.
   2. On 6 August 2015, Mr Kersey reported that he has two other children who currently reside with their mother in another country.
   Mr Kersey advised that he financially supports the children whilst they are in the care of the mother.

   3. On 14 May 2019, Mr Kersey reported that he is the biological father of two other children (relevant dependents).
   Mr Kersey was advised that the two relevant dependent children could not be added to the existing case as the children were not in his care and were living in another country.
   With the reported relevant dependent children from Mr Kersey, if the call on 6 August 2015 is considered then there is a total of three children.
   On 6 August 2015, he reported relevant dependent number 1 and relevant dependent number two.
   On 14 May 2019, he reported relevant dependent number two and relevant dependent number three only.

   4. On 22 February 2022, Mr Kersey reported that the two relevant dependant children arrived in Australia two weeks prior to the call.

   On the same day, Mr Kersey s two relevant dependents were added to the existing case and recorded as in the 100% care of Mr Kersey.

   5. On 25 May 2022, Mr Kersey lodged an application for a Change of Assessment.

   6. On 7 July 2022, it was determined by a Decision Maker that there were grounds that met the criteria for Reason 9.

   As a result, it was decided to record the relevant dependent allowance for Mr Kersey on the assessment of $26,494.00 in the period from 1 February 2021 to 21 February 2022.

   As a result, from applying the relevant dependent allowance the annual rate of child support was decreased from $22,184.00 to the new annual rate of $17,230.00.

   There was a decrease in maintenance recorded on Mr Kersey s account of $284.83.

   7. On 27 March 2023, as a result of a lodged complaint lodged on 28 February 2023, it was decided to record Mr Kersey s two relevant dependents (for the first child) from 9 January 2018 and then (for the second child) from 14 May 2019.

   The basis of the decision to record the two relevant dependents (two and three see point three) of the dates of 9 January 2018 and 14 May 2019 was the dates that we became aware of the relevant dependents and there was provided evidence that supported Mr Kersey was providing financial support for the two relevant dependents.

   It was decided to record the care that Mr Kersey provides for his two relevant dependent children as 35% care to Mr Kersey.

   The decision was based on that there was no provided evidence to support the Mr Kersey had provided in excess of 35% care of the relevant dependants.

   As a result, from adding the relevant dependents allowance on the assessment from 9 January 2018 and 14 May 2019 the following changes were made:

   …
   There was an overpayment of $3,086.61 was created.

   8. On 8 May 2023, Mr Kersey lodged an objection to the decision made on 27 March 2023.

   9. On 18 May 2023, the objection lodged Mr Kersey on 8 May 2023 was deemed to be an invalid objection.

   10. On 27 October 2023, the Administrative Appeals Tribunal advised that they were satisfied that Mr Kersey first lodged an objection on 8 May 2023 in relation to the original decision made by Child Support on 27 March 2023 and this could reasonably be considered as a valid objection.

   REASONS FOR THE DECISION

   There was decision made on 27 March 2023 to recorded two relevant dependants of Mr Kersey on the assessment from 9 January 2018 and 14 May 2019 and record the care on the assessment as 35% care to Mr Kersey.

   Mr Kersey lodged an objection to the decision made on 27 March 2023.

   The decision to record the relevant dependent from the dates that we were first notified was based on the provided evidence that Mr Kersey had provided financial support to the two relevant dependants.

   The basis of recording the care for the two relevant dependents as 35% care to Mr Kersey was based on the was no evidence of care provided to support that he had more than 35% care.

   In the course of the objection process, there was no evidence provided by Mr Kersey to support that he had provided in excess of 35% care for the two relevant dependants.

   Where the information provided is insufficient for a pattern of care to be determined, and there is no common expectation about future care, we will assume that the percentage of care known at the time the assessment was made was continuing. As there is no change to the care percentages, the assessment will not be amended.

   In consideration on the above, it was decided that the actual care for the two relevant dependents could not be determined and, as a result, the care for the two relevant dependent children will be record on the assessment as 35% care to Mr Kersey from 9 January 2018 and 14 May 2019.

   The objection is disallowed.

3. Mr Kersey and Miss Noakes participated in the Tribunal’s hearing by conference telephone. In short, Mr Kersey says he has always been responsible for his children overseas and this should be reflected in the child support assessment. He has always provided such support from the time the child support assessment with Miss Noakes commenced in 2015 (and from [date] June 2018 when [Child 2] was born).

Application of the law

1. Section 73A of the Child Support (Assessment) Act 1989 (the Act) provides as follows:

   Registrar becoming aware of relevant dependent child

   (1)  If:

   (a)  an administrative assessment of child support is in force in relation to a parent; and

   (b)  the Registrar is later notified, or otherwise becomes aware, of the fact that the parent has a relevant dependent child who was not taken into account for the purposes of making the assessment;

   then, for the purposes of working out the parent's relevant dependent child amount under section   46, the parent is taken to have the relevant dependent child:

   (c)  if the Registrar was notified, or otherwise became aware, of the fact that the child is a relevant dependent child of the parent within 28 days after the day on which the child became such a child--on and from the day the child became such a child; or

   (d)  if paragraph   (c) does not apply and the Registrar was notified, or otherwise became aware, of the fact within 28 days after giving a notice under section   34 (giving notice of successful application)--on and from the day on which the application was made; or

   (e)  if neither paragraph   (c) nor (d) applies--on and from the day the Registrar was notified, or otherwise became aware, of the fact that the child is a relevant dependent child of the parent.

   (2)  If the parent is a resident of a reciprocating jurisdiction, subsection   (1) has effect as if the references in paragraphs   (1)(c) and (d) to 28 days were references to 90 days.

2. Unlike many aspects of child support law, there is no time limit; amending an assessment is given retrospective effect from the date the Registrar was notified or otherwise became aware of the relevant dependent child.

3. The Child Support Guide, at 2.9.5, provides as follows:

Adding a relevant dependent child

If a parent advises the Registrar of a relevant dependent child (2.4.7) that was not taken into account in their child support assessment, the Registrar will amend the assessment to recognise the cost to the parent in caring for that child. The date the amendment takes effect will depend upon the date the Registrar was notified, or otherwise became aware of the relevant dependent child (CSA Act section 73A).

The Registrar does not need an application from a parent before a relevant dependent child can be added to the assessment. The Registrar can become aware of the need to add a relevant dependent in other ways, for example, from information provided by the Secretary or by a parent's authorised representative.

1. In this matter, the Registrar accepted that Mr Kersey should be recorded as having 35% care of the two relevant dependent children from 9 January 2018 and 14 May 2019. Given the level of financial support and care provided by Mr Kersey, I agree with this conclusion. Neither parent raised any particular objection to the recorded level of Mr Kersey’s care.

2. Mr Kersey’s evidence is that he has consistently provided that level of support at all material times, including going back to 2015 when the child support assessment with Miss Noakes commenced.

3. I have no reason to doubt that evidence. Accordingly, I am satisfied that Mr Kersey should be recorded as having 35% care of the two relevant dependent children from 23 July 2015 ([Child 1]) and [date June] 2018 ([Child 2], born [date] June 2018).

4. Child Support records show that on 6 August 2015, an officer spoke to Mr Kersey (see folio 17 of the Child Support hearing papers). Amongst other things, it is recorded that Mr Kersey advised that he was financially supporting [Child 1], who was living overseas.

5. I therefore find that an application for child support was made by Miss Noakes on 23 July 2015; Child Support accepted that application on 6 August 2015 and, pursuant to its obligation under section 34 of the Act, notified the parents by letter dated that same date: folio 20 of the Child Support hearing papers. On 6 August 2015, Child Support became aware of Mr Kersey’s child, [Child 1].

6. The effect of paragraph 73A(1)(d) of the Act is that [Child 1] is to be recorded as a relevant dependent child in the assessment from 23 July 2015 (and not from 9 January 2018).

7. In respect of [Child 2], Child Support was first notified on 14 May 2019: see folio 85 of the Child Support hearing papers. This is the first date Child Support became aware of that fact. The effect of paragraph 73A(1)(e) of the Act is that [Child 2] is to be recorded as a relevant dependent child from 14 May 2019 (this is the same conclusion as the objections officer; for simplicity, I will set aside what has been framed by Child Support as a single decision for both children).

DECISION

The decision under review is set aside and the matter is sent back to the Child Support Registrar for reconsideration in accordance with the direction that the child support assessment be reconsidered on the basis that:

(a)the child [Child 1] is to be recorded as a relevant dependent child from 23 July 2015 (not from 9 January 2018);

(b)the child [Child 2] is to be recorded as a relevant dependent child from 14 May 2019.