Koerner and Todd (Child support)

[2020] AATA 2166

Koerner and Todd (Child support) [2020] AATA 2166 (4 June 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/MC018535

2020/MC018623

APPLICANT:  Ms Koerner

OTHER PARTIES:  Child Support Registrar

Mr Todd

TRIBUNAL:Member J Longo

DECISION DATE:  4 June 2020

DECISION:

The decisions under review are affirmed.

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 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 Koerner and Mr Todd are the parents of [Child 1] and [Child 2]. The Department of Human Services – Child Support (the Department) had recorded from 7 February 2017 that Ms Koerner had 100% care of [Child 1] and [Child 2] and that Mr Todd had 0% care of [Child 1] and [Child 2].

2.On 2 February 2018, Mr Todd notified the Department that [Child 1] and [Child 2] were living with him from 1 November 2017. 

3.On 7 April 2018, the Department determined that Mr Todd had a care percentage of 63% of [Child 2] and Ms Koerner had a care percentage of 37% of [Child 2] from 3 November 2017. On 28 April 2018 the Department determined that Mr Todd had a care percentage of 80% of [Child 1] and Ms Koerner had a care percentage of 20% of [Child 2] from 3 November 2017.

4.On 5 September 2019, Ms Koerner lodged an objection to the above care decisions of the Department, stating that [Child 2] and [Child 1] had been primarily in her care until February 2018. On 25 February 2020, the Department partly allowed the objection and determined that Mr Todd had a percentage of care of 77% for [Child 1] and Ms Koerner had a percentage of care of 23% from 1 November 2017 and that Mr Todd had a percentage of care of 63% for [Child 2] and Ms Koerner had a percentage of care of 37% from 1 November 2017.

5.On 3 March 2020 and 13 March 2020, Ms Koerner lodged an application to the Administrative Appeals Tribunal (the tribunal) for a review of the decisions. The hearing took place on 4 June 2020. Ms Koerner and Mr Todd spoke to the tribunal via conference telephone and gave sworn evidence. In making its decision the tribunal took into consideration the documents provided by the Department (418 pages), which were sent to both parties prior to the hearing. Ms Koerner provided additional information prior the hearing (A1 to A2).

CONSIDERATION

6.The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act).

What is the care of [Child 1] and [Child 2]?

7.It is not in dispute that from 7 February 2017 the Department determined that the care of [Child 1] and [Child 2] was Mr Todd having 0% of the care and Ms Koerner having 100% of the care of [Child 1] and [Child 2]. It is also not in dispute that Mr Todd contacted the Department on 2 February 2018 to advise that the care of [Child 1] and [Child 2] had changed.

8.Ms Koerner confirmed that there were court orders for the care arrangements for the children but that they did not specify a percentage of care for Mr Todd and herself. Rather, the orders stated that the care of the children should occur in accordance with the children’s wishes. Ms Koerner stated from November 2017 the children spent a few nights with Mr Todd but there was no substantive change in the care arrangements. She stated that the evidence provided by Mr Todd was not true and there was no change in the care at the time.

9.Ms Koerner stated that the evidence of the neighbour provided to the Department by Mr Todd should not have been relied upon as they would have no idea where the children were staying. Ms Koerner referred to the rental of her house at the time was evidence of the children being in her care. The documents provided by the Department include a residential tenancy agreement signed by Ms Koerner and a rent certificate for her rental property. Ms Koerner stated that she rented a four-bedroom home at the time because she had the children in her care.

10.Ms Koerner also stated that the evidence from Mr Todd’s son was inconsistent with Mr Todd’s evidence. Ms Koerner stated that Mr Todd’s son stated that he was living with his father in October 2017 but Mr Todd stated that [Child 1] and [Child 2] started living with him in November 2017.

11.Mr Todd stated that [Child 1] and [Child 2] had been living with him since the beginning of November 2017. Mr Todd stated that he moved into the matrimonial home in October 2017 and it was ready in November 2017. Mr Todd also refers to the letter in support provided by Mr Todd’s son. Mr Todd also told the tribunal that he was visited by the Department of Health and Human Services (DHHS) at the time and they saw that the children were living with him – this evidence was provided to the Department but is not included in the documents. Mr Todd stated that the most recent letter from Ms Koerner to the tribunal in support of her claim of care of [Child 1] and [Child 2] is contrived. He also questioned why this document was not provided earlier to the Department. Mr Todd stated that he kept a daily note of the care of the children in a notebook.   

12.Section 50 of the Act requires a determination of a percentage of care to be made where the tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period as considered to be appropriate having regard to all the circumstances. In Ms Koerner’s application, she stated that she had the majority of care of [Child 1] and [Child 2].

13.The tribunal is required to consider what care Ms Koerner and Mr Todd intended for [Child 1] and [Child 2] at the time of the application. The tribunal notes that the various third-party statements initially provided to the Department but it would seem that not all of the statements have been included in the documents provided to the tribunal.

14.Firstly, in regard to the statements provided in support of Ms Koerner’s claims as to care of the children, the tribunal notes that the statements from her work colleagues[1] and friends do not provide any direct evidence as to the care arrangements at the time but rather speak generally about the care of the children. Some of these statements refer to their ‘belief’ as to the care of the children and not to any actual knowledge of the care arrangements.

[1]Pages 63 to 68 of the Section 37(1) and section 38AA Statement and Documents

15.Mr Todd’s evidence of the care of [Child 1] and [Child 2] relied upon statements made by the children, which the tribunal has not considered in this application. However, Mr Todd provided a statement from his eldest son which states that he was residing with Mr Todd and that [Child 1] and [Child 2] were in the majority of his care during this period. Mr Todd provided further evidence of the care including the enrolment of the children at [College 1]. While it is clear that the children were enrolled by Mr Todd at [College 1], this occurred after the period and does not show that the children were in his care from November 2017.

16.Ms Koerner referred to the evidence of the neighbour regarding the care of the children. This evidence, including other evidence from DHHS and the children’s psychologist, was not before the tribunal and so consequently cannot be considered. In addition, the tribunal notes that the calendar information provided to the tribunal by both parents differs considerably. The tribunal relies on the analysis of the care undertaken by the Department at the time of the decision, including the comparison of the care stated by the parents. The tribunal also notes that while the majority of the third-party statements lack any specificity relating to the care, Mr Todd’s son’s statement provides a first-hand account of the care of [Child 1] and [Child 2]. The inconsistencies raised by Ms Koerner, stating that the dates differ between Mr Todd and his son’s account, are not apparent in the information provided: Mr Todd’s son stated that he was living with his father since October 2017 and that [Child 1] and [Child 2] have been living with their father since November 2017[2]; which is consistent with Mr Todd’s statement on 19 February 2018[3] that he moved into the matrimonial home in October 2017 and that [Child 1] and [Child 2] commenced living with him in November 2017.

[2]Page 99 of the Section 37(1) and section 38AA Statement and Documents

[3]Page 85 of the Section 37(1) and section 38AA Statement and Documents

Should the existing care determinations in relation to [Child 1] and [Child 2] be revoked?

17.Subsection 54F(1) of the Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child or children. Mr Todd notified the Department that the care taking place did not correspond with the existing care of [Child 1] and [Child 2] on 2 February 2018. Mr Todd stated to the Department that the care changed from 1 November 2017.

18.In this case, the tribunal has determined that a care determination was made under section 50 of the Act from 7 February 2017 and that Ms Koerner had a percentage of care for [Child 1] and [Child 2] of 100% and that Mr Todd had a percentage of care of 0% for [Child 1] and [Child 2]. Therefore, paragraph 54F(1)(a) of the Act is satisfied. 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 [Child 1] and [Child 2], the tribunal must determine the percentage of 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)).

19.The tribunal is required to consider what the actual care of [Child 1] and [Child 2] was or is likely to be during the care period. The care period is such a period as the Child Support Registrar considers appropriate having regard to all the circumstances (section 50 of the Act). The Department’s policy, 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. The tribunal considers that, in the circumstances of this case, an appropriate care period is the period from 1 November 2017, being the date from which Mr Todd notified the Department that the change to care arrangements occurred and that the care period should be a 12-month period. The tribunal accepts, based on the Department’s considerations and analysis as discussed above, that Mr Todd’s care of [Child 1] was 77% and Ms Koerner had a percentage of care of 23% of [Child 1] from 1 November 2017 and that Mr Todd had a percentage of care of 63% for [Child 2] and Ms Koerner had a percentage of care of 37% from 1 November 2017. 

20.The tribunal has determined that the care should be changed from 1 November 2017 to reflect the care of [Child 1] and [Child 2] as discussed above in paragraph 19 of these Reasons for Decision. Accordingly, the previous determination of care is revoked from 31 October 2017 and a new determination made from 1 November 2017. This affirms the objection decision of the Department.

21.The tribunal notes that even if a favourable decision was made that the care percentage was higher than determined in April 2018 by the Department for [Child 1] and [Child 2], the date of effect of any such a decision would require the consideration of circumstances which prevented Ms Koerner from requesting a review within 28 days of the Department’s original decision, as Ms Koerner did not seek review until 5 September 2019. The tribunal would need to be satisfied that there were special circumstances which prevented Ms Koerner from applying for a review within 28 days of the original decision. These considerations do not seem to form part of the decision of the Department, notwithstanding they were relevant considerations at the time.

22.Ms Koerner stated that she thought that the consideration of other care determinations by the Department and then subsequently by the tribunal, would rectify the care from November 2017. Ms Koerner stated that she had always disagreed with the decision and had made this known to the Department. While there are discussions of the care of [Child 1] and [Child 2] after the original decision, these discussions relate to subsequent care determinations and not the determination in this matter. The tribunal’s view, based on Ms Koerner’s submissions to the tribunal and the Department documents, is that there was nothing uncommon or out of the ordinary which prevented her from applying a review of the decision within 28 days of the Department’s original decision. Therefore, even if the tribunal were to make a favourable decision, such a decision could not have effect prior to 5 September 2019. As further care determinations have been made since this date, the Department’s decision would not be amended.

23.Accordingly, the tribunal has affirmed the decisions of the Department.

DECISION

The decisions under review are affirmed.