Knutt and Knutt (Child support)

[2018] AATA 4351

Knutt and Knutt (Child support) [2018] AATA 4351 (19 September 2018)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2018/MC014704

APPLICANT:  Mrs Knutt

OTHER PARTIES:  Mr Knutt

Child Support Registrar

TRIBUNAL:  Ms T Hamilton-Noy, Member

DECISION DATE:  19 September 2018

DECISION:

The Tribunal affirms the decision under review.

CATCHWORDS
CHILD SUPPORT – percentage of care – ad hoc changes to care arrangements – no change to the pattern of 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. This application relates to a decision by the Department of Human Services – Child Support (the Department) relating to the level of care provided by Mrs Knutt and Mr Knutt to their daughter [Child 1].

2. The administrative assessment in place at the relevant time provided for Mrs Knutt to have 67% care of [Child 1] and for Mr Knutt to have 33% care of [Child 1].

3. On 17 April 2018 the Department was contacted by Mrs Knutt and advised that care was not taking place in accordance with the administrative assessment and that Mr Knutt was having care of [Child 1] for two nights every three to five weeks.

4. On 4 May 2018 an employee of the Department made a decision to revoke the existing care determination and make a new determination that from 20 April 2018 Mrs Knutt had 94% care of [Child 1] and Mr Knutt had 6% care of [Child 1].

5. On 7 May 2018 Mr Knutt lodged an objection to this decision.

6. On 2 July 2018 an objections officer of the Department allowed the objection and found that there should be no revocation of the existing determination of care.

7. On 1 August 2018 Mrs Knutt made application to the Administrative Appeals Tribunal for an independent review of the Department’s decision.  Mr Knutt was added as a party to the proceeding.  The hearing was held on 19 September 2018, on which date both parties attended the hearing in person and gave evidence on affirmation.  The Tribunal was assisted in this matter by documents provided by the Department.  Copies of the documents were provided to the parties prior to the hearing and they both confirmed receipt of the documents with the Tribunal.

CONSIDERATION

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act). The legal issue for the Tribunal in this case relates to an existing determination of care in place, which is that Mrs Knutt has 67% care of [Child 1] and Mr Knutt has 33% care of [Child 1]. The Tribunal must determine whether the statutory requirements for this care determination to be revoked are met.

2. The relevant provisions considered by the Tribunal were sections 54F, 54G and 54H of the Act, all of which allow for the Registrar (or the Tribunal, standing in the shoes of the Registrar) to revoke an existing care determination. For each of these provisions, the Tribunal must first decide whether the existing pattern of care has changed.

Evidence before the Tribunal

1. The parties were in agreement that there had been nothing in writing, by way of a court order or parenting plan, to determine the care arrangements that were reflected in the administrative assessment of child support, namely that Mrs Knutt was providing 67% care to [Child 1] and Mr Knutt was providing 33% care to [Child 1].  The Tribunal understood that the intention was for Mr Knutt to have care of [Child 1] two nights each week (Friday and Saturday nights) and half of the school holidays.  Over 40 weeks of school terms this would equate to 80 nights, and the remaining half of the 12 weeks of school holidays would equate to 42 nights, which amounts to 33% care. The Tribunal found on the evidence before it that it was on this pattern of care on which the existing determination of care was based.

2. The parties did not agree whether this broad pattern of care had changed or not.

3. Mrs Knutt stated to the Tribunal that [Child 1] has not been going to her father’s every weekend.  As to when this changed, Mrs Knutt stated it was some 18 months ago.  She had not contacted the Department earlier as her father told her it was not safe [and] not to worry about it; that it was complicated and could make things worse.

4. Mrs Knutt stated that since care had changed, there was up to three weeks between care episodes.  She had not kept calendars or records of care as she didn’t feel she needed to.  As to how changes in care were communicated, Mrs Knutt stated that her daughter has a mobile phone and would speak to Mr Knutt; there was no communication between the parties.  She described the care during 2018 as “very casual”, with her daughter not wanting to go to Mr Knutt’s many times.  She stated she is “pretty confident” it has not been every weekend this year.

5. The Tribunal asked about the April 2018 holidays and Mrs Knutt stated that [Child 1] had left for Mr Knutt’s on Mrs Knutt’s birthday and she didn’t see her as much as she should have.  In the July 2018 holidays Mrs Knutt stated she was unwell and [Child 1] was staying with Mr Knutt.  The Tribunal noted that this was not consistent with Mrs Knutt’s earlier evidence that [Child 1] had only seen her father every few weeks and Mrs Knutt stated in response that she had already had two weekends of care.  As to the 2017/2018 school holidays, Mrs Knutt stated that she knows [Child 1] was at Mr Knutt’s more than a couple of weekends but can’t recall when she was there.

6. The Tribunal noted the record of contact between Mrs Knutt and the Department on 17 April 2018 (folio 30) when Mrs Knutt reported Mr Knutt as having Friday and Saturday nights every three to five weeks.  Mrs Knutt stated that there had been that pattern for a long time.  The Tribunal noted that this was different to the evidence Mrs Knutt was giving to the Tribunal and she stated that the pattern of care, broadly, is that Mr Knutt has two to three weekends per month but she can’t exactly say.

7. The Tribunal also noted the record of contact between Mrs Knutt and the Department dated 20 April 2018 (folios 32 to 34) where Mrs Knutt provided dates to the Department that [Child 1] would be in the care of her father.  The Tribunal asked Mrs Knutt about the reasons the specific dates were provided going forward, and she stated to the Tribunal that she doesn’t know what the dates were based on; she thinks she just said generally what would happen.  As to whether the dates correctly reflected care that had occurred, she stated that she doesn’t have a calendar.

8. Mr Knutt stated to the Tribunal that he agrees with the Department’s decision. The pattern of care has been Friday and Saturday nights and half of school holidays which equates to 33% care.  He disagreed that there had been a change to the broad pattern of care.  He agreed that [Child 1] is growing up and sometimes says she can’t come to him because she is not well, or has plans with her mother or a birthday party.  Apart from the last few weekends he has not had care due to a death in the family, he believed he has had care of [Child 1] the weekends prior to that over the past couple of months. 

9. In response to further questions by the Tribunal, Mr Knutt stated that he had moved away from the [Suburb 1] area where [Child 1] is living with her mother to [Suburb 2] two years ago.  He stated that the pattern of care did not change when he moved away, and has always been weekends and part of school holidays.

10. The Tribunal asked about the dates of care provided by Mr Knutt to the Department for March, April and May 2018 (detailed at folio 5) and he stated that he had kept a small book that was “freshly written” at different points in time.  He had also checked the dates and confirmed with his wife.  He agreed that he had had care of [Child 1] in the summer holidays and July 2018 holidays.

Findings of the Tribunal

1. The Tribunal found on the evidence before it that the administrative assessment of child support reflected Mrs Knutt as having 67% care of [Child 1] and Mr Knutt as having 33% care of [Child 1].  This was not reflected by way of a court order, parenting plan or written agreement, but rather was by way of longstanding agreement between the parties.  The Tribunal accepted that under this arrangement [Child 1] resides with Mrs Knutt and spends time with Mr Knutt on weekends and half of each school holidays.

2. In order for sections 54F, 54G or 54H to apply, the Tribunal would need to be persuaded that the pattern of care reflected in the administrative assessment of child support was no longer being followed. The Tribunal did not find that this was the case. While there had been some ad hoc changes to the care arrangements, the Tribunal noted the evidence of the applicant was inconsistent with information provided previously to the Department and inconsistent on the day of the hearing. The Tribunal preferred the evidence of Mr Knutt that the broad pattern of care has continued.

3. For this reason, the Tribunal found that the existing care determination is unable to be revoked under sections 54F, 54G or 54H of the Act. The Department’s decision to refuse to revoke the existing determination of care is therefore legally correct and is affirmed.

DECISION

The Tribunal affirms the decision under review.