Rodden and Child Support Registrar (Child support)

[2018] AATA 4153

Rodden and Child Support Registrar (Child support) [2018] AATA 4153 (26 September 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/PC014585 & 2018/PC014555

APPLICANT:  Mr Rodden

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  26 September 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS
CHILD SUPPORT – percentage of care – no change to the likely 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 review is about a change to the percentage of care determinations in respect of the child [Child 1].

2. Mr Rodden and Ms Keeling are the parents of [Child 1] (born October 2002) and Mr Rodden is the parent liable to pay child support.  From 1 April 2016 the child support assessment reflected Ms Keeling as having 100 per cent care of [Child 1].

3. On 27 March 2017 Mr Rodden advised the Department of Human Services, Child Support (the Child Support Agency) there had been a change in the care for [Child 1] as she had been living with her grandparents since 15 March 2017.

4. On 27 April 2017 the Child Support Agency made the decision to refuse to reflect the care of [Child 1] as 0 per cent care to Mr Rodden and 0 per cent care to Ms Keeling (the first original decision).

5. On 6 March 2018 Mr Rodden’s Power of Attorney, [Ms A], advised the Child Support Agency on behalf of Mr Rodden that there had been a change of care for [Child 1] as she was no longer living with her mother and her whereabouts were unknown.

6. On 17 April 2018 the Child Support Agency made the decision to refuse to reflect the care of [Child 1] as 0 per cent care to Mr Rodden and 0 per cent care to Ms Keeling (the second original decision).

7. On 23 April 2018 Mr Rodden’s Power of Attorney, [Ms A], objected to both the first original decision and the second original decision and on 22 June 2018 the Child Support Agency disallowed both objections (the objection decisions).

8. On 17 July 2018 Mr Rodden applied to the Administrative Appeals Tribunal (the Tribunal) for review of the objection decisions.

9. The Tribunal conducted a hearing into the applications on 26 September 2018 and heard the matters concurrently.  Mr Rodden gave evidence on affirmation by conference telephone.  The Tribunal wrote to Ms Keeling on 2 August 2018 inviting her to be added as a party to application for review number 2018/PC014555 and on 9 August 2018 inviting her to be added as a party to application for review number 2018/PC014585.  Ms Keeling did not respond to either invitation and so did not participate in the hearing.  The Child Support Agency provided the Tribunal and Mr Rodden with papers relevant to the matter (201 pages).  Additional documents were received from Mr Rodden prior to the hearing (A1 to A3).

ISSUES

1. The statutory provisions relevant to these reviews 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 the likely care is thereafter.

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 a new care determination to take account of a care change.

5. The issues which arise in this case are:

   ·       have there been changes in the pattern of care for [Child 1] which require existing percentages of care to be revoked and new care determinations to be made; and if so,

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

CONSIDERATION

1. Mr Rodden told the Tribunal that Ms Keeling had significant drug-related problems and following a family meeting in February 2017 it was decided that [Child 1] would move in with him.  He said unfortunately [Child 1] only stayed with him for a short time and then went back to live with her mother.  Mr Rodden said not long after this the [relevant state department] intervened and [Child 1] was placed in the care of her grandmother (Ms Keeling’s mother).  Mr Rodden said this was on 15 March 2017.

2. Mr Rodden explained that [Child 1] was required to live with her grandmother temporarily until there had been an improvement in Ms Keeling’s drug addiction.  He said at this stage Ms Keeling was still living in the family home located in [Town 1].

3. Mr Rodden said that during a conversation with [Child 1’s] grandmother she had told him that she was not receiving any child support from Ms Keeling at the time and did not wish to because she did not want to aggravate the situation.

4. Mr Rodden told the Tribunal that around 4 October 2017, after Ms Keeling was evicted from the family home in [Town 1], she moved in with her mother and [Child 1].  This lasted until around Christmas 2017 until [Child 1’s] grandmother kicked them out due to Ms Keeling’s ongoing drug problems. 

5. Mr Rodden said he was absolutely certain that from 15 March 2017 at least until 4 October 2017 [Child 1] was not in the care of her mother.  He said [Child 1’s] grandmother was completely responsible for her welfare at that time.

6. The Tribunal notes in evidence provided by the Child Support Agency a court document from a family consultant dated 19 May 2017.  This document states:

   [Child 1] has been staying with her maternal grandmother [named] since the 17/3/17.  This seems to have been good for [Child 1] and she has settled and is enjoying time with her Nan, they appear to have a good relationship.

7. Although Ms Keeling did not provide evidence to the Tribunal, it is noted that on 27 March 2017 she advised the Child Support Agency that [Child 1] was with her grandmother temporarily during a police investigation.  Ms Keeling also said she continued to provide financial support for [Child 1].  During a further discussion with the Child Support Agency on 29 March 2017 Ms Keeling said she was still buying [Child 1] clothing and essentials as well as providing emotional and financial support.

8. The Tribunal also notes in the documents provided by the Child Support Agency a hand- written statement signed by [Child 1’s] grandmother, [named].  This statement, received by the Child Support Agency on 24 April 2017, confirms that [Child 1] was living with her grandmother on a temporary basis and her mother continued to provide financial and other support to [Child 1] during this time.

9. Mr Rodden told the Tribunal he was uncertain who had written this statement and suggested it may have been written by [Child 1’s] mother.  He said the Child Support Agency should have followed this up with the grandmother although he acknowledged she would probably not want to get involved.

10. Mr Rodden said he was uncertain where [Child 1] was living after Christmas 2017.  He said she may have been living with her mother but that was unlikely as he had heard she was living with her boyfriend.  Mr Rodden said in June 2018 [Child 1] had contacted him and asked for clothes.  He said [Child 1] seemed surprised when he told her he was still paying her mother child support.  Mr Rodden told the Tribunal he was very frustrated that the child support was clearly not going where it should and certainly not for the benefit of [Child 1].

11. Mr Rodden said his Power of Attorney had provided the Child Support Agency with evidence from child protection which confirmed [Child 1] had not been living with her mother since 1 February 2018 and that child protection was unware of where she was living.

12. The Tribunal notes in the documents provided by the Child Support Agency a letter from the [state department 1] relating to the care of [Child 1].  The letter, dated 7 March 2018, states that [Child 1] “is no longer in the care of her mother” and has been living with a friend since 1 February 2018.  The letter also states that it is unknown if [Child 1] will return to her mother’s care and there is no evidence suggesting Ms Keeling is using child support money to care for [Child 1]. 

13. As there was doubt about the veracity of this letter, subsequent evidence provided by Mr Rodden to the Tribunal in the form of a second letter from the [state department 1] dated 4 September 2018 confirms the original letter was from the [state department 1].

14. The Tribunal also notes that on 3 April 2018 and 5 April 2018 Ms Keeling provided the Child Support Agency with additional evidence in relation to the care arrangements for [Child 1].  This includes:

    ·       a third-party statement from [a named detective] of the [state] Police dated 30 March 2018 which confirms he witnessed [Child 1] present at her mother’s address on 7 March 2018;

    ·       a medical certificate from [Doctor A] confirming he saw [Child 1] on 25 March 2018[1];

    ·       an email dated 4 April 2018 from [name], [Child 1’s] grandmother, stating [Child 1] is living with her mother in a rental property; and

    ·       A hand written third-party statement from [Ms B], [Child 1’s] sister, stating that she has been living with her mother and sister since 30 January 2018.

    [1] The home address on the certificate has been redacted by the Child Support Agency, however, Ms Keeling states it was a home visit.

15. The Tribunal notes that on 4 May 2018, Ms Keeling advised the Child Support Agency that after leaving her mother’s around 18 December 2017, she and [Child 1] stayed with a friend for around two weeks and then returned to her mother’s before obtaining a rental home on 30 January 2018.

16. The Tribunal is satisfied, based on the evidence provided, that [Child 1] was in the care of her grandmother from 17 March 2017 until she moved with her mother into a rental property on 30 January 2018.  The Tribunal is also satisfied, however, that Ms Keeling was the eligible carer responsible for [Child 1] as she was still providing financial support and making decisions relating to her care and day-to-day needs during the time with her grandmother.  The weight of evidence also suggests that [Child 1] continued to be in the care of Ms Keeling from 30 January 2018.

17. While the evidence form the [state department 1] does state that [Child 1] had been living with a friend from 1 February 2018 it is inconclusive as to whether or not this was a permanent arrangement.  Evidence from the [state] Police confirms that [Child 1] was at her mother’s home on 7 March 2018 but is equally inconclusive as to whether or not she was visiting or living there permanently.  The Tribunal finds the third-party statement provided by [Ms B] to be more conclusive in this regard.

18. On balance the Tribunal is not satisfied there have been changes of care for [Child 1] such that the existing patterns of care are incorrect.

DECISION

The decision under review is affirmed.