Kuzner and Paulson (Child support)

Kuzner and Paulson (Child support) [2023] AATA 844 (10 March 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/MC023421
APPLICANT:  Mr Kuzner
OTHER PARTIES:  Child Support Registrar
Ms Paulson

TRIBUNAL:Member D Cox
DECISION DATE: 10 March 2023
DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted 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

Mr Kuzner and [Ms Paulson] are the parents of [Child 1] born [in] November 2005.
On 14 November 2021 [Ms Paulson] made an application for a child support assessment for [Child 1] stating that she had 91% care and Mr Kuzner had 9% care from 12 November 2021.
Services Australia (Child Support) spoke to Mr Kuzner.
On 6 December 2021 the registration was accepted with care of [Child 1] reflected as 86% to [Ms Paulson] and 14% to Mr Kuzner.
On 11 January 2022 Mr Kuzner lodged an objection to the care percentage decision.
On 28 January 2022 Mr Kuzner made an application for a change of assessment because he believed his child support assessment is unfair because of the child’s income, earning capacity, property and financial resources, known as Reason 4. This application related to the assessments for [Child 1] and his older brother, [Child 2], born [in] March 2004.
On 24 February 2022 an objections officer disallowed Mr Kuzner’s objection to the care percentage decision of 6 December 2021.
On 4 March 2022 Mr Kuzner made an application to the Tribunal for a review of the objections officer’s decision.
On 12 March 2022 Child Support found that Reason 4 was established and made departure decisions in relation to the assessments of Mr Kuzner’s child support assessments for both [Child 1] and [Child 2]. Mr Kuzner and [Ms Paulson] told the Tribunal that neither of them had lodged an objection to the departure decisions and that neither of them intended to. As there is no objection decision, the Tribunal does not have jurisdiction in relation to the departure decision.

CONSIDERATION

[Ms Paulson] and Mr Kuzner attended the hearing by teleconference. Mr Kuzner was represented by his partner, [Ms A]. All made affirmations to tell the truth.
Mr Kuzner told the Tribunal that [Child 1] had been living with him until 12 November 2021 when he decided to live with [Ms Paulson]. However, [Child 1] found it difficult to get to work and it was arranged that he live with [Ms Paulson’s] ex-partner’s mother, [Ms B]. The first night [Child 1] spent at [Ms B’s] house was 17 November 2021. From that night [Child 1] generally spent week nights at [Ms B’s] house and made his own decision about which parent he would stay with on weekends. He also spent some nights at the house of a friend [named] and on other occasions at the house of his girlfriend, [named].
Mr Kuzner and [Ms Paulson] have an agreed calendar setting out where [Child 1] slept for the months of November 2021 to March 2022, which is at pages 12 to 16 of the hearing papers.
At the hearing both Mr Kuzner and [Ms Paulson] said they agreed with the calendar which includes weeknights spent at [Ms B’s] house until the end of March 2022.
However [Ms Paulson] also said that [Ms B] asked [Child 1] to leave her home without notice on 14 March 2022 because he had not paid his rent. Mr Kuzner told the Tribunal that there was a new assessment from 14 March 2022.
On the basis of the evidence in paragraphs 2, 12, 13 and 14, the Tribunal decided to determine the relevant care period as 12 November 2021 to 14 March 2022.
A summary of the nights the agreed calendar says [Child 1] spent with [Ms Paulson], [Ms B], Mr Kuzner and others during the period 12 November 2021 to 14 March 2022 are set out in the following table:

Month	[Ms Paulson]	[Ms B]	Mr Kuzner	Others
November	11	8	0	0
December	10	16	2	3
January	14	11	3	2
February	2	19	2	3
March	2	9	2	0
Total	39	63	9	8

Mr Kuzner told the Tribunal that the care percentage decision was incorrect because [Child 1] was living with [Ms B] and neither parent had 35% care.
However, Mr Kuzner also told the Tribunal that he was the primary carer. This belief is most clearly set out in the following extract from his letter [unedited] dated 2 February 2022 which is at page 100 of the hearing papers:
I still feel ultimately responsible for him being that prior to moving in with [Ms B], he lived with me full time for four years and I have been heavily involved in helping [Child 1] towards achieving his goals, which I am so proud to be able to say he has achieved this year. At the beginning of 2021 I enrolled him in a [subject] pre-apprenticeship VCAL program which he completed while studying [grade] at [a named] College. He completed this course with [Agency 1] in [Town 1], and I have paid all fees involved with his education and travel, and provided him with all the clothing and equipment needed, as any responsible parent would do. Towards the end of this course in September last year, I assisted [Child 1] with looking for jobs, writing resumes and cover letters and applying for positions. He was fortunate enough to be offered a position with [Employer 1] [at location] in October 2021, and has now officially begun his first year apprenticeship with the company this year. I liaise often with [Child 1’s] employer and HR representative at work as there has been many discussions and forms needing to be signed to approve [Child 1’s] early school leaving, and consent given in regards to starting the apprenticeship. I visit [Child 1] 1-2 times per fortnight at his work and make or buy him lunch, catch up with him and often check in with his employer [named]. When [Child 1] spends weekends and holidays with me, I support him with food, clothing, entertainment and I do not charge him any rent for those weekends. I still pay for his mobile phone plan, ambulance membership, and help him out with cash gifts whenever is needed. We speak on the phone five nights per week.
[Ms Paulson] told the Tribunal that [Child 1] came to live with her on 12 November 2021 and that when he discovered how difficult it was for him to get to work from her home she arranged for him to live at [Ms B’s] house from Sunday to Thursday nights. [Ms B] is her ex-husband [Mr A’s] mother. [Ms Paulson] said [Child 1] was 16 years old and somebody had to be responsible for his care.
Mr Kuzner addressed the issue of who made the arrangement for [Child 1] to stay with [Ms B] in his letter dated 2 February 2022, in which he said the arrangement had been discussed and agreed with him:
I also want to address the fact that it was a joint decision made between myself, [Child 1], [Mr A] and [Ms Paulson] regarding the decision for [Child 1] to move in permanently with [Ms B]. I have had phone conversations with [Mr A] and [Ms Paulson] in regards to this, as well as text messages with [Ms Paulson]. [Child 1] and I first discussed the possibility of this arrangement with [Mr A] in early November last year when he dropped in to my home for a visit. [Child 1] agreed that was what he wanted as it was so much closer to work and would eliminate the one-hour bus ride each way. Obviously I was happy to leave it to [Mr A] to be the one to ask [Ms B] if this was an arrangement she would be willing to accept, seeing as she is [Mr A’s] Mother. I also reiterated to [Mr A] and [Ms Paulson] during these conversations that I would be willing to provide financial support to [Ms B] and to pass that offer along to her.
The hearing papers, at page 84, contain a typed and unsigned letter from [Ms B] dated 17 January 2022 which says:
I have known [Child 1] since [year], since [Child 1] was 2 years old. He later became my grandson when my son [Mr A] married [Child 1’s] mum [Ms Paulson].
Both [Mr A] and [Ms Paulson] contacted me late 2021 asking if [Child 1] could live at my home in [Town 2] 4-5 nights a week as he had received an offer of [an] apprenticeship.
Since mid November 2021, [Child 1] has stayed with me 3-4 nights a week, which I am very pleased with.
In 2022, [Child 1] will be working 5 days a week, so shall arrive on Sunday night and go home to either parent on the Friday night depending on what [Child 1’s] wishes are.
Last night I discussed with [Child 1], about paying $50 per week as board to cover costs of living with me part time.
[Ms Paulson] and my son [Mr A] are the one’s who I contact regarding [Child 1’s] parenting and rule’s of living at home or any concerns I have.
I have not given any other written information to either party about [Child 1’s] living arrangements until I wrote this letter.
[Ms Paulson] was the person who asked e to write this letter to clarify [Child 1’s] current living arrangements and who is responsible for him.
Mr Kuzner has questioned the veracity of this letter, telling the Tribunal in his application for review:
This decision is blatantly wrong as the calendar of care I provided (which was agreed upon by [Ms Paulson]) clearly shows that [Child 1] doesn't live with either parent. He lives with [Ms B], and has spent weekends between myself, [Ms Paulson] and at friends houses. The calendar shows that neither [Ms Paulson] or myself have 35% care of him. I provided [Ms B’s] contact details yet she has not been contacted once during the review supposedly conducted. They instead took the word of a typed, unsigned letter provided by [Ms Paulson] stating that she is the 'responsible parent' that was emailed to her by [Ms B]. We have since found out that [Ms Paulson] illegally altered this letter and added in the parts claiming that she is the one who arranged for [Child 1] to live there and that she is the one [Ms B] calls regarding any parental concerns. A simple phone call to [Ms B] can verify this and I have obtained her consent to be contacted regarding this issue.
Mr Kuzner did not substantiate these allegations, nor did the Tribunal pursue them at the hearing. The Tribunal put no weight on the letter or the allegations in making its decision.
[Ms Paulson] told the Tribunal she was not obliged to provide information about the costs of her care for [Child 1].
At page 18 of the hearing papers Mr Kuzner provides the following description of [Child 1’s] financial arrangements while working for [Employer 1]:
During this time, [Child 1] has largely supported himself. He pays rent to [Ms Paulson], despite staying with her very little. In November 2021 he paid $200 rent, in December he paid $150 and in January he has paid her $150 rent. He officially began his full time first year apprenticeship with his current employer on January 16th 2022 and lives with [Ms B] Monday to Friday to be close to his work. [Ms B] didn’t charge [Child 1] any rent for November/December 2021 and refused any financial help from myself, but since [Child 1’s] living arrangements have become full time since January she has agreed on an amount with [Child 1] of $50 per week. I transferred $200 into [Child 1’s] bank to cover his first months rent with [Ms B] and he will continue to pay for himself weekly from then on. [Child 1] pays for his own food and entertainment. In November 2021 he spent $628.78 on groceries and takeaway, In December spent $308, and in January 2022 has spent $236 on food.
Although [Child 1] is financially independent, I am still supporting him financially and emotionally, particularly in regards to settling into his new job. I call [Child 1] at least five nights a week to discuss his work and wellbeing. I have organised the ‘exemption from school application’ with his principal and sent this to his employer on his behalf. I have been in touch with the apprenticeship board to approve [Child 1’s] apprenticeship, liaise often with his employer‐[named], and HR representative at his work to exchange documents or provide consent. [Child 1] and I are also in the process of applying for a ‘living away from home allowance’ which is $77 per week, and a healthcare card through the apprenticeship board. I continue to pay his mobile phone bill and support him in any way he needs. I travel to [Town 2] to see him and have lunch with him on a regular basis, and have met his employer several times to discuss [Child 1’s] progress. He also stays with me alternate weekends and holidays wherein I provide him with everything he needs and do not charge him rent for his time with me.
The Tribunal took note of the change of assessment referred to in paragraph 6 of these Reasons for Decision, which both Mr Kuzner and [Ms Paulson] told the Tribunal they are not intending to object to, which had provided significant reductions in Mr Kuzner’s child support assessment for [Child 1] because of [Child 1’s] capacity to support himself.
That there was a change of care on 12 November 2021 when [Child 1] made a decision to live with [Ms Paulson] is not disputed, see paragraph 11 of these Reasons for Decision.
The respective number of nights [Child 1] spent in the homes of [Ms Paulson], [Ms B], Mr Kuzner and others is not disputed, see paragraphs 13 and 16 of these Reasons for Decision.
The Tribunal determined the care period as 12 November 2021 to 14 March 2022, see paragraph 15 of these Reasons for Decision.
The Tribunal found that there is insufficient evidence to determine care on the basis of financial support for [Child 1], see paragraphs 18, 24, 25 and 26 of these Reasons for Decision.
Mr Kuzner gave evidence that he provided [Child 1] with substantial support in preparing for and obtaining an apprenticeship, see paragraph 18 of these Reasons for Decision. However an overwhelming majority of that assistance was provided while [Child 1] was living with him and before the change of care.
Mr Kuzner’s position is that neither he nor [Ms Paulson] had 35% or more care of [Child 1] because [Child 1] spent most nights at the home of [Ms B]. However, the Tribunal noted that during the care period [Child 1] spent only 9 nights at Mr Kuzner’s home and 39 nights at [Ms Paulson’s] home.
The Tribunal gave more weight to [Ms Paulson’s] contentions which are set out in paragraph 19 of these Reasons for Decision. These are: that [Child 1] had chosen to live with her; that when [Child 1] found it too difficult to get to work from [Ms Paulson’s] home, she arranged for [Child 1] to stay at a family member’s home, [Ms B’s], on the nights before [Child 1] had to be at work; and that [Child 1] was only 16 years of age and someone, her, had to have primary responsibility for his care.
Section 50 of the Child Support (Assessment) Act 1989 requires the Tribunal to determine a percentage of care that reflects a person’s percentage of care that corresponds with the actual care of the child that the person is likely to have. The Tribunal found that [Child 1] was in [Ms Paulson’s] care when he was staying at [Ms B’s] home on the nights before he had to work. The nights [Child 1] was at either [Ms Paulson’s] home or [Ms B’s] home during the care period total 102 of 119 nights or 86%. This corresponds with the percentage of care the objections officer determined [Child 1] was in [Ms Paulson’s] care.
The Tribunal therefore affirms the objections officer’s decision of 24 February 2022 to disallow Mr Kuzner’s objection.

DECISION

The decision under review is affirmed.

[2023] AATA 844

10 March 2023

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Judicial Review

Procedural Fairness

Statutory Construction