Kilb and Kilb (Child support)

[2018] AATA 5054

Kilb and Kilb (Child support) [2018] AATA 5054 (4 December 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/HC014955

APPLICANT:  Mr Kilb

OTHER PARTIES:  Child Support Registrar

Ms Kilb

TRIBUNAL:Member C Breheny

DECISION DATE:  04 December 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS

Child Support – percentage of care – whether child resides with a non-parent carer – whether the parent continues to provide care – 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 Kilb and Mr Kilb are the separated parents of [Child 1], born April 2002. There is another child, [Child 2], not subject to this review. A child support case has been registered with the Department of Human Services – Child Support (the Department) since 7 May 2002, and from 27 September 2017, child support has been payable on the basis that Ms Kilb had 22% care of [Child 1] and Mr Kilb had 78% care of [Child 1].

2. On 20 March 2018 Ms Kilb contacted the Department and advised that [Child 1] had been residing with her grandmother (Ms Kilb’s mother) since December 2017 and that Mr Kilb only had occasional care of [Child 1]. Mr Kilb disputed that there had been a care change.

3. On 30 May 2018 a decision was made that Ms Kilb had 0% care and Mr Kilb had 14% care of [Child 1] from 17 December 2017, but as Ms Kilb had not notified the change of care until 20 March 2018, the care change would only take effect from that date.

4. On 11 June 2018, Ms Kilb contacted the Department to object to the decision on the basis that she continued to provide financial assistance and other support to [Child 1] and she thus continued to have care of [Child 1].

5. On 7 August 2018, an objections officer of the Department decided to allow the objection. The objections officer determined that Ms Kilb had 100% care of [Child 1] and Mr Kilb had 0% care of [Child 1] from 17 December 2017, with effect from the date of notification (20 March 2018).

6. On 4 September 2018, Mr Kilb applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal for an independent review of the objection decision. The application was heard on 4 December 2018. Ms Kilb and Mr Kilb attended the hearing by conference telephone and gave evidence on affirmation. A representative of the Child Support Registrar did not attend the hearing. I had before me the Statement and Documents provided by the Department pursuant to sections 37 and 38AA of the Administrative Appeals Tribunal Act 1975, received on 8 October 2018 and 20 November 2018 respectively (documents numbered 1–80).

ISSUES & CONSIDERATION

1. The relevant legislation is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988.

2. Sections 49 and 50 of the Act provide that a care determination must be made following an application for a child support assessment and requires consideration of the actual, or likely, pattern of care that the parents will have in relation to the children in a particular care period.

3. In this case, departmental records indicate that since 27 September 2017, child support liability had been calculated on the basis that Mr Kilb had 78% and Ms Kilb had 22% care of [Child 1]. Records also show that Ms Kilb contacted the Department on 20 March 2018 to advise that [Child 1] had been residing with her grandmother since late 2017. In a decision made on 7 August 2018, an objection’s officer determined that Ms Kilb had 100% care of [Child 1] effective from 20 March 2018.

4. I note that since then, the Department has made a further care determination on 10 October 2018 to the effect that Mr Kilb has 100% and Ms Kilb has 0% care of [Child 1] from 4 September 2018.

Mr Kilb’s evidence

1. Mr Kilb submitted that the objections decision was incorrect because [Child 1] had been in his care at all times. She would stay with her grandmother on occasion, for example over the weekend, but she continued to be in his care.

2. Mr Kilb submitted that the information provided by Ms Kilb and her mother was incorrect. They (Ms Kilb and her mother) would lodge false reports with the Department, so he would “suffer”.

3. Mr Kilb said that he could not provide any further evidence to support his claim, because he had no contact with anyone (friends or family). He provided a letter from [Child 1]’s high school principal verifying his address was on the school enrolment form, as [Child 1]’s home address.

4. Mr Kilb said that Ms Kilb only wanted his money and her claims were baseless.

Ms Kilb’s evidence

1. Ms Kilb stated that [Child 1] had a disagreement with her father and moved out to stay with her grandmother in late 2017. [Child 1] is 16 years old and she often changes her mind as to where she wants to live.

2. Ms Kilb resides in [State 1], but [Child 1] did not want to move to [State 1] with her. She stayed with Mr Kilb for a while, but then went to live with her grandmother. In September 2018 [Child 1] decided to move back with her father again.

3. Ms Kilb said that she continued to pay for [Child 1]’s support, whilst she was staying at her grandmother’s home and both her (Ms Kilb’s) and [Child 1]’s grandmother’s names and addresses are on the school enrolment form, in addition to Mr Kilb’s address.

4. Ms Kilb noted that she initially did not do anything when [Child 1] moved out of her father’s home, as she was not sure whether [Child 1] would change her mind again. She contacted the Department in March 2018 to notify a care change, as it appeared [Child 1] was continuing to stay with her grandmother for the longer term.

5. Ms Kilb acknowledged that [Child 1] spent some time with her father since late 2017, but this was not a regular occurrence.

Mr Kilb: additional evidence

1. Mr Kilb provided a letter from [Child 1]’s high school principal (folio 23) dated 10 May 2018. The letter states, “enrolment records show Mr Kilb to be the main parent of contact and that [Child 1] resides with him”.

2. Mr Kilb did not provide any other supporting evidence.

Ms Kilb: additional evidence

1. Ms Kilb provided an email from her mother ([Child 1]’s grandmother) dated 21 March 2018 (folio 10). The email states:

   Over the past three months [Child 1] has been staying with me and only returning to her father when I have been away, which was for 2 weeks in February and a long weekend. I am the emergency contact with her School …

2. In a further email (folio 45) dated 12 June 2018, [Child 1]’s grandmother writes:

   My grand daughter is permanently living with me … the only time she has returned to her father [was] when I have gone away … Her mother, Ms Kilb deposits money in my bank account to cover any expenses for [Child 1]. She also supports [Child 1] financially and emotionally by depositing money in [Child 1]’s bank account …

3. Ms Kilb also provided a copy of a receipt for [an item of clothing] she had purchased for [Child 1] from her high school (folio 51).

Conclusion

1. Care is generally calculated over a “care period”, which is a period that the Registrar or the Tribunal considers to be appropriate having regard to all the circumstances of the matter (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, but it may be a shorter period depending on the circumstances of the case.

2. In this case Ms Kilb notified the Department on 20 March 2018 that [Child 1] had left her father’s care on 17 December 2017. Records also show that a new care decision was made on 10 October 2018 to the effect that Mr Kilb has 100% and Ms Kilb has 0% care of [Child 1] from 4 September 2018. I therefore find that the relevant care period in this case is the nine-month period from 17 December 2017 to 4 September 2018 (261 nights).

3. The evidence in this case is limited. Ms Kilb submits that there has been a care change and that [Child 1] had left her father’s care in late 2017. Mr Kilb disputes this and submits that there was no care change.

4. The evidence from Ms Kilb’s mother ([Child 1]’s grandmother) supports Ms Kilb’s submission that [Child 1] had been residing at her grandmother’s place, but Ms Kilb continued to support her, both financially and emotionally.

5. Mr Kilb provided a letter from [Child 1]’s school to indicate that [Child 1] was residing with him, but he acknowledged that the school would have based this information on their enrolment records, not on actual observation as to where [Child 1] was residing.

6. Mr Kilb stated that Ms Kilb and her mother were “not telling the truth” and “only wanted money” from him. I note however that Ms Kilb did not notify the care change until three months later and I also note that there had been three prior notifications of care changes for [Child 1] in 2017.

7. This appears to support Ms Kilb’s submission that [Child 1] changes her mind about where she wants to live frequently and would often move between her father’s and her grandmother’s place, as she did not wish to move to [State 1] with Ms Kilb.

8. It would also be odd that Ms Kilb would wait for three months before notifying a care change, if she “only wanted money”, because the delay in notification means that the administrative assessment of child support is only affected from the date of notification (in this case 20 March 2018).

9. Based on these deliberations, I have decided and found that a care change did occur on 17 December 2017 and that Ms Kilb had 100% care and Mr Kilb had 0% care of [Child 1] from that date. As Ms Kilb did not notify the care change until 20 March 2018, it will only affect the child support assessment from that date.

10. This is the same conclusion as that of the objections officer and I therefore affirm the decision under review.

DECISION

The decision under review is affirmed.