Kinchen and Primrose (Child support)

[2023] AATA 845

Kinchen and Primrose (Child support) [2023] AATA 845 (9 February 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/BC024893

APPLICANT:  Ms Kinchen

OTHER PARTIES:  Child Support Registrar

Mr Primrose

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  09 February 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Kinchen provides 100 per cent care and Mr Primrose provides 0 per cent care of [Child 1] from 3 April 2022 but with effect from 12 May 2022 for Ms Kinchen and from 3 April 2022 for Mr Primrose.

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 – 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. This review is about a change to the percentage of care determinations for Ms Kinchen and Mr Primrose in respect of their child [Child 1] (born November 2007).  The Tribunal acknowledges the parents have two children, however, this matter relates to [Child 1] only.  There has been a child support assessment in place for [Child 1] since 19 May 2008.

2. From 17 November 2021 the child support assessment reflected Ms Kinchen as having 0 per cent care and Mr Primrose as having 100 per cent care of [Child 1].

3. On 12 May 2022 Ms Kinchen notified the Child Support Agency of a change to the care arrangements stating that [Child 1] had been living with a relative since 12 March 2022 and was no longer in the care of Mr Primrose.

4. On 2 August 2022 the Child Support Agency made the decision to refuse to reflect that Ms Kinchen provides 100 per cent care and Mr Primrose provides 0 per cent care of [Child 1] from 12 March 2022.

5. On 8 August 2022 Ms Kinchen objected to this decision and on 2 October 2022 the Child Support Agency disallowed the objection (the objection decision).

6. On 24 October 2022 Ms Kinchen applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 9 February 2023.  Ms Kinchen and Mr Primrose gave evidence on affirmation by Microsoft Teams audio.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (229 pages).

8. At hearing Mr Primrose said he had not received the papers from the Child Support Agency as he had moved home.  Mr Primrose said he was nonetheless happy for the Tribunal to proceed to make a decision on the matter.

ISSUES

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

2. The Child Support Agency makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent.  The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, the Child Support Agency determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (section 50 of the Act).  In other words, the Child Support Agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter.  The task of the Tribunal on review is the same.

4. The Child Support Agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make new care determinations to take account of a care change.

5. The issues which arise in this case are:

   ·     has there been a change in the pattern of care for [Child 1] which requires the existing percentages of care to be revoked and new care determinations made; and, if so,

   ·     from what date should the new percentage of care determinations take effect?

CONSIDERATION

1. Ms Kinchen told the Tribunal there was no court order or written agreement in place relating to the care of [Child 1].  Ms Kinchen said care of [Child 1] changed as a result of the floods in southern Queensland in late February 2022.  Ms Kinchen said as Mr Primrose was unable to provide a home for [Child 1] he had taken him to stay with her uncle Mr [A].

2. Ms Kinchen said initially, based on conversations with her uncle, she thought [Child 1] had been living with him from late February 2022 but she later discovered it was not until around 12 March 2022.  Ms Kinchen said [Child 1] may have been there on and off before moving in with [Mr A] permanently so she was uncertain of the exact date.

3. Ms Kinchen said from around mid-March she was assisting her uncle financially to help support [Child 1] as was her mother.  Ms Kinchen said she was not only giving her uncle cash but also buying clothes for [Child 1] at the time.  Ms Kinchen said sometimes she would have to go to Cash Converters to get extra money for her uncle as she wanted to help out as often as she could afford to.  Ms Kinchen said she also enrolled [Child 1] at a new school close to her home and purchased school uniforms and other school-related essentials for [Child 1].

4. The Tribunal notes in evidence from the Child Support Agency a letter from the principal of [School 1] dated 17 August 2022.  It confirms that [Child 1] commenced at the school on 3 May 2022 and Ms Kinchen was the enrolling parent.

5. Ms Kinchen informed the Tribunal that because she had health issues her NDIS support coordinator assisted her when she was helping care for [Child 1] at her uncle’s home as well as with other general arrangements for [Child 1].  Ms Kinchen said she had provided statements from third parties, including her NDIS support worker, outlining the circumstances relating to [Child 1]’s care.

6. The Tribunal notes in evidence third-party statements from Mrs Kinchen dated 6 July 2022, from Ms [B] dated 8 July 2022 and Ms [C] dated 15 August 2022.  The statement from Mrs Kinchen, [Child 1]’s maternal grandmother, states that [Child 1] returned to her home on 6 March 2022 and then went to live with her brother [Mr A] “until now”.  Mrs Kinchen adds that [Child 1]’s mother is helping “to support the needs of the kids specially [Child 1]”.  The statement from Ms [B], who is a counsellor and mental health therapist providing support to Ms Kinchen, states the kids have returned to their uncle’s house seeking shelter and Ms Kinchen is “heaving in debt trying to keep up with the bills and at the same time providing financial support to her kids”.  The statement from Ms [C], a mental health occupational therapist, states she has known Ms Kinchen since 20 May 2022 and since that time [Child 1] has lived with [Mr A].

7. The Tribunal further notes in evidence various bank statements and transactions provided by Ms Kinchen to the Child Support Agency.  These include a purchase at [Store 1] on 22 May 2022 of $65.95, a purchase at [Store 2] on 26 May 2022 of $371.80, a phone credit for [Child 1] on 4 July 2022 of $55, a transfer of $145 on 11 July 2022 entitled [Child 1], a mobile banking payment to [Child 1] on 18 July 2022 of $20 and a receipt from [Store 3] totalling $54 for the purchase of trackpants and a hoodie.

8. Mr Primrose told the children that [Child 1] was in his care until around 3 April 2022 when he was admitted to [a] Hospital for cancer treatment.  Mr Primrose said [Child 1] was living with [Mr A] from this date until he moved into shared rental accommodation with his brother from around the end of July 2022.

9. Mr Primrose said he agreed he was forced to make arrangements for temporary accommodation after the home he was living in was damaged by floods in late February 2022.  Mr Primrose said he clearly recalled initially staying with a friend in [City 1] from around 3 March 2022 before spending a few days with [Mr A].  He said [Child 1] was still in his care around 15 March 2022 when they checked into accommodation at [a] Resort [for] a week before going back to stay with [Mr A] again.  Mr Primrose said he and [Child 1] then stayed for around two weeks [in] [City 1].

10. Mr Primrose said he was aware [Mr A] had little money and he had no doubt Ms Kinchen and her mother would have been assisting [Mr A] financially and helping out in other ways while [Child 1] was living in his home.

11. In order to determine whether or not there has been a change in care for [Child 1] the Tribunal must first be satisfied that a new pattern of care was established.

12. Ms Kinchen has informed the Tribunal she first believed that [Child 1] moved in to live with her uncle from late February but then found it was not until 12 March 2022.  Ms Kinchen said she was unsure of the exact date.  Mr Primrose has explained that he and [Child 1] stayed in temporary accommodation from around 3 March 2022, including short stays with [Mr A], until [Child 1] began living with [Mr A] permanently from 3 April 2022.

13. The Tribunal is satisfied, based on the evidence provided, that care of [Child 1] changed from 3 April 2022 when he began living with [Mr A].  At this point neither parent was providing overnight care of [Child 1], however, Ms Kinchen has submitted that she and her mother were assisting to support [Child 1] financially as well as in other ways.

14. In such circumstances care as measured in nights may not be a true reflection of the care arrangements.  The Tribunal must determine whether or not a particular parent is providing ongoing daily care even though the child is living separately from that parent.

15. The Federal Magistrates Court of Australia, in Polec & Staker & Anor[1] set out the factors to be considered in determining whether and to what extent a person has care of a child for the purpose of the child support legislation.  These are:

    ·     to what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extracurricular activities;

    ·     to what extent does the person make arrangements for others to meet the needs of the child;

    ·     to what extent does the person pay for the costs of meeting the needs of the child;

    ·     to what extent does the person otherwise provide financial support to the child;

    ·     to what extent does the child provide for his or her own needs or have those needs met from another source; and

    ·     to what extent is the child financially independent or financially supported from another source?

    [1](SSAT Appeal) [2011] FMCAfam 959

16. The Child Support Guide, at 2.2.1, also provides some guidance in relation to children living away from home.  It states:

    …

    Where a person provides substantial financial support to an older child living away from home, the Registrar will generally consider that financial support as an indicator that the person is continuing to provide care for the child. The support can be in relation to daily costs such as food, accommodation and transport, and/or longer term costs such as school fees, paying for airfares home for holidays, clothing, health and dental care, etc.

    While financial support is often a key factor in determining whether a person cares for a child who lives away from home, it will not always be the sole determinant. In cases where the financial support provided is limited, and other factors exist that suggest that the person continues to care for the child, the Registrar will consider whether the person is actively involved in major decisions relating to the child. For example, decisions relating to the child's health, schooling, relationships, career, etc. may be indicators that the person continues to provide care for the child.

    …

17. Although not bound by policy as set out in the Child Support Guide, the Federal Court has held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.

18. Although the third party statements provided to the Child Support Agency by Ms Kinchen do not indicate exactly when [Child 1] began living with [Mr A] they do tend to support that when this occurred Ms Kinchen was providing financial assistance to [Mr A] to help with living costs for [Child 1].  There is limited evidence showing the extent of this financial assistance, however, Mr Primrose has also indicated Ms Kinchen would have been helping [Mr A] financially.  The letter from the principal of [School 1] confirms that it was Ms Kinchen who enrolled [Child 1] at the school and this strongly suggests she was directly involved in making decisions about his education and welfare.  The evidence also supports that Ms Kinchen was in regular contact with [Mr A] about [Child 1]’s day-to-day needs.

19. In light of this evidence, on balance, the Tribunal is satisfied that Ms Kinchen was providing 100 per cent care of [Child 1] and Mr Primrose was providing 0 per cent care from 3 April 2022.

20. The existing percentages of care reflected in the assessment for [Child 1] were 0 per cent care to Ms Kinchen and 100 per cent to Mr Primrose.  The Tribunal is satisfied, in the circumstances of this case, that section 54G of the Act does not apply.  Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parents’ existing percentage of care and a change in the percentage of care would result in a change to the cost percentage, then the existing percentage of care determinations must be revoked and replaced by new percentage of care determinations.

21. As section 54F of the Act is met, the Tribunal finds the previous determinations must be revoked and replaced with the pattern of care that took place.

New care percentage determinations

1. Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Ms Kinchen and Mr Primrose under sections 49 and 50 of the Act.

2. For the reasons outlined above, the Tribunal finds that Ms Kinchen provides 100 per cent care and Mr Primrose provides 0 per cent care of [Child 1].

Date of effect of new care percentage determinations

1. The Tribunal finds that Ms Kinchen notified the Child Support Agency of the change in care on 12 May 2022.  As this is more than 28 days after the change occurred on 3 April 2022, according to paragraph 54F(3)(b) of the Act, the existing care determinations are revoked for the parent with increased care from the day before the date of notification and for the parent with reduced care from the day before the date the change occurred.

2. The new determinations can be made from 12 May 2022 for Ms Kinchen and from 3 April 2022 for Mr Primrose.

3. In making this decision the Tribunal notes that Mr Primrose indicated [Child 1] left the home of [Mr A] around the end of July 2022 and moved into shared rental accommodation with his brother.  If Mr Primrose or Ms Kinchen believes there has been a new change in the care arrangements for [Child 1] either parent may wish to notify the Child Support Agency.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Kinchen provides 100 per cent care and Mr Primrose provides 0 per cent care of [Child 1] from 3 April 2022 but with effect from 12 May 2022 for Ms Kinchen and from 3 April 2022 for Mr Primrose.