Kidd and Kidd (Child support)

[2020] AATA 896

Kidd and Kidd (Child support) [2020] AATA 896 (6 February 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC017679

APPLICANT:  Mr Kidd

OTHER PARTIES:  Child Support Registrar

Ms Kidd

TRIBUNAL:Member J Longo

DECISION DATE:  6 February 2020

DECISION:

The tribunal sets aside the decision and, in substitution, decides not to change the determination of care. Consequently, Mr Kidd will continue to have a percentage of care of 14% for [Child 1] and Ms Kidd will continue to have a percentage of care of 86% for [Child 1].

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – existing percentage of care determinations should not have been revoked – decision under review set aside and substituted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.Ms Kidd and Mr Kidd are the parents of [Child 1]. Mr Kidd is the parent liable to pay child support.

2.From 17 June 2017, the Department of Human Services – Child Support (the Department) had determined that Mr Kidd had a percentage of care of 14% for [Child 1], and Ms Kidd had a percentage of care of 86% for [Child 1].

3.On 4 December 2018, Ms Kidd notified the Department that the care of [Child 1] had changed. Ms Kidd stated that [Child 1] was in her care 96% and that Mr Kidd had 4% care of [Child 1] from 1 October 2018.

4.On 9 April 2019, the Department decided to change the care determination to reflect that Ms Kidd had 95% care of [Child 1], and Mr Kidd had 5% care of [Child 1] with effect from 1 October 2018. Mr Kidd disagreed with the decision and lodged an objection on 7 May 2019. On 12 August 2019, an objections officer disallowed Mr Kidd’s objection to [Child 1]’s care.

5.On 19 August 2019, Mr Kidd lodged an application to the Administrative Appeals Tribunal (the tribunal) for a review of the decision. The hearing took place on 6 February 2020. Ms Kidd and Mr Kidd participated in the hearing by conference telephone and gave sworn evidence. In making its decision, the tribunal took into consideration the documents (numbered 1 to 315) provided by the Department which were also sent to Ms Kidd and Mr Kidd. Mr Kidd provided additional documents (numbered A1 to A21) which were also sent to Ms Kidd and the Department.

CONSIDERATION

6.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]?

7.Mr Kidd confirmed that there were no court orders or parenting plans in place for the care of [Child 1]. Mr Kidd stated that the care of [Child 1] has not changed and he continues to provide the same level of care. He moved from [Suburb 1] to be nearer to [Child 1]. Mr Kidd stated that [Child 1] will often go to parties with his mates and he allows him to do this. This often means [Child 1] will sleep over with his friends but he still sees this as being in his care. He stated that he has also purchased other items for him, including work clothing, paying for his car licence test, gym membership, surf board and other purchases.

8.Mr Kidd stated that it is normal for [Child 1] to ask him to provide him transportation – usually an Uber – and so he organises this for him. During the Christmas school holidays in 2019, [Child 1] stayed in [Suburb 2] with his brother from 19 January. Mr Kidd stated that he gave [Child 2] $300 towards their costs. Mr Kidd also stated that he has driven [Child 1] to [Town 1] after having stayed in his care the night before. Mr Kidd submitted that his care of [Child 1] was the same as before and had not changed and provided evidence of the expenses paid for on behalf of [Child 1] and evidence of his care.

9.Ms Kidd stated that she provided the Department with a calendar which she had reproduced from her work outlook calendar. She did not provide the original calendar. Ms Kidd stated that the calendar had recurring events when Mr Kidd was to have the care of [Child 1] and she would make notes of when [Child 1] did not stay with Mr Kidd.

10.Ms Kidd did not deny that Mr Kidd provides Uber rides for [Child 1] when he needs to go somewhere but stated that this was usually from her place rather than when he is with Mr Kidd. She stated that she has also made purchases for [Child 1]. Ms Kidd confirmed that there were no parenting orders or court orders regarding the care of [Child 1] and that initially her lawyers had suggested arrangements but these were never formalised. Ms Kidd stated that there was no routine to [Child 1]’s care and that [Child 1] determines when he wants to stay with Mr Kidd. She confirmed that [Child 1] is currently more interested in spending time with his friends. Ms Kidd stated that she had provided a letter in support of the change in care.

11.The tribunal notes the letter of support provided by [Ms A]. Mr Kidd has submitted that [Ms A] is a friend of Ms Kidd and is therefore not an objective view of the care of [Child 1]. Apart from these submissions, the tribunal notes that the observations in the letter relate to [Child 1]’s attendance at school and to parent-teacher interviews. There is no direct evidence of [Ms A] regarding the care of [Child 1] but rather it discusses information given to her from [Child 1]. The tribunal has not given this letter any weight as it does not provide direct evidence of [Child 1]’s care.

12.As stated, both Mr Kidd and Ms Kidd have provided calendar information about who had the care of [Child 1]. In Ms Kidd’s case, she has extracted this information from her calendar. Mr Kidd has written down dates when [Child 1] was in his care, which are for periods after the date of notification of the care change. The information provided by Ms Kidd and Mr Kidd does not support that a change has occurred or not occurred. Ms Kidd’s dates were recurring dates which were not completed at the time the care occurred or did not occur. The tribunal is unable to, on the balance of probabilities; determine the care of [Child 1] on the basis of this information.

13.Section 50 of the Act requires a new determination of a percentage of care to be made where an existing determination has been revoked and the tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period.

14.The Act also requires that there would be a change in the cost percentage if another percentage of care were determined for Ms Kidd under section 50 of the Act. Section 50 of the Act provides that if the tribunal revokes a determination and is satisfied that a party has had, or is likely to have, a pattern of care of a child, the tribunal must determine the care during the care period. ‘Actual care’ may be worked out based on the number of nights the child was or will be in the care of the person (subsection 54A(1) of the Act).

15.The tribunal is required to consider what the actual care Ms Kidd and Mr Kidd have had or are likely to have of [Child 1] during the care period. The care period is such a period as the Child Support Registrar considers to be appropriate, having regard to all the circumstances (section 50 of the Act). The Department’s policy in this regard, as set out in Chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed. This policy is not binding on the tribunal but the tribunal has determined that it is appropriate in this matter. In this case, the Department determined that the care period should start from 1 October 2018.

16.The tribunal has determined that the care for Ms Kidd and Mr Kidd should remain as determined by the Department and that a new determination of care should not be made. While there may have been a change to the care, the tribunal is not satisfied that this was the care Ms Kidd had, or was likely to have, from 1 October 2018. The care changes are insufficiently supported by the evidence provided and do not show a permanent change in the care of [Child 1] for the period.

17.Therefore, the tribunal is not satisfied that there has been a change in the care which constitutes a change to the pattern of care, as required under section 50 of the Act. Accordingly, the tribunal has decided not to revoke the existing care determination.

18.As the tribunal has concluded that the care percentages were the same as Ms Kidd and Mr Kidd’s care percentages from 17 June 2017, paragraph 54F(1)(d) of the Act is not satisfied. In the circumstances, the tribunal does not revoke the existing determinations of percentages of care from 1 October 2018. If the care has changed since a change was notified to the Department, Mr or Ms Kidd will need to notify the Department accordingly of any further changes in care and provide evidence in support of these changes.

DECISION

The tribunal sets aside the decision and, in substitution, decides not to change the determination of care. Consequently, Mr Kidd will continue to have a percentage of care of 14% for [Child 1] and Ms Kidd will continue to have a percentage of care of 86% for [Child 1].