Seaborn and Kington (Child support)

Seaborn and Kington (Child support) [2021] AATA 2738 (20 May 2021)

DIVISION: Social Services & Child Support Division

REVIEW NUMBER: 2021/AC020996

APPLICANT: Ms Seaborn

OTHER PARTIES: Mr Kington

Child Support Registrar

TRIBUNAL: Ms Hamilton-Noy, Member

DECISION DATE: 20 May 2021

DECISION:

The Tribunal sets aside the decision under review and substitutes its decision that the existing determination of care is revoked from 13 April 2020 and from 14 April 2020 a new determination of care is made that Ms Seaborn had 0% care of [Child 1] and Mr Kington had 0% care of [Child 1].

CATCHWORDS

CHILD SUPPORT – percentage of care – determination of whether care exists – older child living out of the home – 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

This application relates to a decision by the Department of Human Services – now Services Australia (Child Support) relating to the care percentages maintained by the Agency for the child [Child 1].
Ms Seaborn and Mr Kington are separated parents of [Child 1]. A child support case has been registered with Child Support since 19 September 2003 and child support has been collectable by the Agency since that date. From this date, Ms Seaborn has been recorded as having 100% care of [Child 1].
On 15 April 2020, Child Support was advised that [Child 1] had left Ms Seaborn’s care.
On 24 September 2020, an employee of Child Support made a decision that both Ms Seaborn and Mr Kington had had 0% care of [Child 1] from 15 October 2019 onwards.
Ms Seaborn requested an internal review of this decision and on 26 February 2021, an objections officer of the Agency disallowed the objection.
On 11 March 2021, Ms Seaborn made an application to the Administrative Appeals Tribunal for an independent review of the Agency’s decision.
The Tribunal hearing was held on 20 May 2021, on which date both parties spoke to the Tribunal by conference telephone and gave evidence on affirmation. At the hearing, the Tribunal had before it documents provided by Child Support (folios 1 to 119), copies of which had been provided to the parties prior to the hearing. Both of the parties confirmed receipt of the documents with the Tribunal.

CONSIDERATION

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988. The legal issue for the Tribunal in this case is whether the existing determination of care was correctly revoked from 15 October 2019 and, if so, what care was to be reflected in a new care determination.
Division 4 of Part 5 of the Assessment Act sets out the relevant legislation relating to percentages of care for child support purposes. Subsection C of that division deals with revocations and suspensions of determinations of percentages of care. The relevant provisions, where the Agency is notified of a change to care arrangements, are sections 54F, 54G and 54H of the Assessment Act.
The Tribunal first considered subsection 54F(1) of the Assessment Act, which provides for the revocation of an existing determination of care in the following circumstances:
(1) The Registrar must revoke a determination of a responsible person's percentage of care (the existing percentage ofcare) for a child made under section 49 or 50 if:
(a) the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person's existing percentage of care for the child; and
(b) the Registrar is satisfied that the responsible person's cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person's percentage of care for the child; and
(c) section 54G does not apply; and

(d) subsection (2) applies in relation to the individual.
Note: The Registrar must make another determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).

The Tribunal is satisfied that the Agency was advised on 15 April 2020 by Centrelink that [Child 1] had left Ms Seaborn’s care on 14 April 2020 and therefore that the care of [Child 1] that was taking place did not correspond with Ms Seaborn’s existing percentage of care. Paragraph 54F(1)(a) is met.
Paragraph 54F(1)(b) requires the Tribunal to consider whether care had changed and from what date, in order to determine whether an individual’s cost percentage would change. The issue in dispute between the parties is the date from which Ms Seaborn ceased caring for [Child 1] for child support purposes.
Ms Seaborn told the Tribunal that [Child 1] had not left her care as of October 2019 and that [Child 1] had met her boyfriend [Mr A] in October 2019 when he moved in with a friend in the street. Ms Seaborn gave evidence that from the end of November and through December 2019, [Child 1], who was 16 years of age at the time, spent time at the house where [Mr A] was staying. She gave evidence that [Mr A] had received burns in a house fire and had to be flown to Adelaide and that [Mr A] and [Child 1] then lived with her for a month from December onwards. She stated that [Mr A] had returned to live with his mother in around February 2020, around the time of [Child 1]’s birthday, but that [Child 1] was living with her the whole time.
The Tribunal asked Ms Seaborn about [Child 1]’s schooling in 2020 and she stated that [Child 1] was ‘troubled’ and had mental health issues and difficulties with schooling. She had been expelled in Year 9 and as of early 2020 was attending TAFE. The Tribunal asked about Christmas 2019 and the 2019-2020 summer holidays and Ms Seaborn stated that [Child 1] spent half of Christmas with her and spent some time with [Mr A]’s family as well. She had taken [Child 1] to buy Christmas presents for [Mr A]’s family and had dropped her over there for lunch. [Child 1] was 17 years old over the summer holidays and, as far as she knows, went out with friends over the holidays. She did not have a job at the time.
The Tribunal asked about the rental arrangements [Child 1] and [Mr A] entered into. Ms Seaborn stated that the house in question belonged to [Mr B]’s father, who is her daughter’s third cousin, and [Child 1] and [Mr A] were told they could live there rent free. [Child 1] started living with [Mr A] around Easter, in April 2020. Ms Seaborn disputed that the lease had commenced on 7 July 2020 as this was her other daughter’s birthday and [Child 1] had not moved on her other daughter’s birthday.
The Tribunal asked about Ms Seaborn’s letter to Child Support, sent in July 2020, which asserted that she continued to have 100% care of [Child 1]. Ms Seaborn stated that [Child 1] was still coming and going, and her clothes and personal belongings were still at Ms Seaborn’s house. [Child 1] would have fights with [Mr A] and would come and stay at Ms Seaborn’ house and it wasn’t until ‘around after July’ that [Child 1] started a lease and moved out. As to how much time [Child 1] had spent at [Mr A]’s house before she moved in with him in April 2020, Ms Seaborn stated that [Child 1] was going to TAFE three days per week and would stay with Ms Seaborn the nights before TAFE. Ms Seaborn would pick [Child 1] up from TAFE. She disagreed with the statement that [Mr A] had provided, which states that they moved in together in October 2019.
Mr Kington responded to Ms Seaborn’s evidence by stating that, even if her evidence was true, as soon as [Mr A] moved in with Ms Seaborn, he and [Child 1] became de facto, ‘and child support stops’. He stated that he had spoken to [Mr A]’ mother who stated that she had organised [Child 1]’s TAFE and that TAFE documents reflected [Mr A]’s mother’s address. He stated that he had never met [Child 1] but she had tracked him down through Facebook and had asked him if he was paying child support. The Tribunal asked about the preparation by Mr Kington of emails from [Mr A] and his mother and he stated he had asked [Child 1] to start asking people for evidence because she wasn’t being cared for. After the decision was made, he put money into [Child 1]’s account instead.
As to the documents before it, contained in the evidence provided by Child Support, the Tribunal had particular regard to the change of care contact made by Mr Kington on 2 July 2020 (folio 14) in which Mr Kington advised Child Support that as of 1 January 2020 [Child 1] had moved in with her boyfriend and lived at her boyfriend’s mother’s house ‘for 6-7 months’, before moving into their own place on 28 May 2020. The Tribunal also had regard to an email from [Ms C] dated 6 July 2020, stating that [Child 1] had lived with her and [Mr A] from approximately October 2019 until the end of March 2020 and that during this time she was financially supporting [Child 1]. The Tribunal also had before it an email prepared by [Mr A] dated 7 July 2020, stating that [Child 1] had moved out of home in approximately October and moved in with his mother and that Ms Seaborn had not supported [Child 1] since that time. A separate email prepared by [Mr A] (undated) states that he had been living with [Child 1] for some 10 months and that in October 2019 he came back from Adelaide suffering burns to his foot and moved into Ms Seaborn’s house for two weeks; that he and [Child 1] then moved into his mother’s house where his mother financially supported [Child 1] and Ms Seaborn provided a minimal amount of financial support; that he and [Child 1] and [Mr B] had moved into their own house three to four months earlier and that during that time, [Child 1]’s Centrelink payments had not been sorted and he and [Mr B] had been financially supporting [Child 1]; and that after [Child 1] commenced receiving Centrelink, Ms Seaborn had only provided support in the form of transportation to doctor’s appointments.
The Tribunal had regard to letters of support provided by Ms Seaborn, prepared between August 2020 and November 2020, stating that [Child 1] was still in the full-time care of her mother up to September 2020; and to a lease in the name of [Child 1], [Mr A] and [Mr B] with a stated start dated of 7 July 2020 in the amount of $300 per week; invoices provided by Ms Seaborn that she asserted were evidence of her continued financial support of [Child 1]; a letter for day surgery for [Child 1] for July 2020.
In considering the care arrangements for [Child 1], the Tribunal also had regard to Child Support’s policy guide relating to care arrangements. At 2.2.1, the Child Support Guide notes the following about older children living away from home:
Generally, older children who live independently and separately from their parents or carers provide for many of their own needs. This may include meeting their own ongoing daily needs (such as meal preparation, transport, socialising, etc.) as well as making their own decisions about their daily activities, schooling and health issues. Therefore, it may be difficult to establish whether a person provides care for an older child who lives separately from that person.
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.
The Tribunal is not bound by the policy set out in the Child Support Guide. However, in Drake and Minister for Immigration and Ethnic Affairs [1979] 2 ALD 60, the Full Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. In this instance, the Tribunal accepts that the policy is consistent with the objects of the Assessment Act and assists in making a determination in accordance with the Assessment Act.
In considering whether there had been a change to care arrangements, the Tribunal did not find either of the parties in this matter overly persuasive. The Tribunal noted that Ms Seaborn had, as of July 2020 and August 2020, continued to represent to Child Support that she continued to have 100% care of [Child 1], despite [Child 1] having entered into a lease agreement with her boyfriend and having sought independent financial support from Centrelink as of April 2020. In support of these assertions, Ms Seaborn had a range of friends and neighbours attest, between August and November 2020, that [Child 1] continued to be in her sole care until September 2020. The Tribunal did not accept this was the case and therefore found that Ms Seaborn did not correctly notify Child Support of the care arrangements for [Child 1] during 2020. The Tribunal was similarly troubled by Mr Kington’s evidence that he had sought a change to the recorded care arrangements despite never having met [Child 1] or having been involved in her care to any meaningful extent. Mr Kington appears to have had [Child 1], the child of the assessment that is the subject of this review, collect evidence to support his application to Child Support after being advised by the Agency that [Child 1] could not provide evidence as she was under 18. The involvement of [Child 1] by Mr Kington in this process is unfortunate and ill-advised.
Given the concerns of the Tribunal about each of the party’s credibility, the Tribunal considered that the best evidence before it about the care arrangements for [Child 1] is the independent evidence provided by Centrelink to Child Support that [Child 1] had updated her address and applied for youth allowance and that she was considered to have left Ms Seaborn’s care as of 14 April 2020 for social security purposes. Having regard to the comments in the Child Support Guide, set out above, the Tribunal found that as of 14 April 2020, [Child 1] became financially independent and that shortly after this she commenced a lease with her boyfriend, which is further evidence of her independence from Ms Seaborn. The Tribunal is satisfied that as of April 2020, Ms Seaborn ceased being actively involved in major decisions relating to [Child 1].
Despite the findings, above, about Ms Seaborn’s evidence about [Child 1]’s care during 2020, the Tribunal did find Ms Seaborn to give her evidence about [Child 1]’s attendance at TAFE in early 2020 to be given in a plausible manner. Further, one of the emails prepared by [Child 1]’s boyfriend referred to him moving in with Ms Seaborn and [Child 1] in late 2019, which supports Ms Seaborn’s assertions that, as at that time, [Child 1] continued to live with her. The Tribunal was satisfied that, from October 2019 to early 2020, [Child 1] continued to live with and be cared for by Ms Seaborn.
The Tribunal finds that the best evidence before it is that care for [Child 1] changed as of 14 April 2020. Under the existing determination of care, Ms Seaborn had 100% care and a cost percentage of 100%; if a new determination of care was made, Ms Seaborn would have 0% care and a cost percentage of 0% (see: section 55C of the Assessment Act). Paragraph 54F(1)(b) is met.
As to whether section 54G applies or not, the Tribunal finds that it does not apply in the circumstances of this case, because while Ms Seaborn had no care of [Child 1] from 14 April 2020, the Tribunal is not satisfied either that Mr Kington notified the Agency of a change to care arrangements within a reasonable time or that, in the circumstances of this particular case, it can be demonstrated that Mr Kington was making [Child 1] available to Ms Seaborn. Paragraph 54F(1)(c) is met.
As to whether subsection 54F(2) applies, this subsection provides that:
(2) This subsection applies in relation to a responsible person if:
(a) disregarding paragraph 53(1)(c), section 51 did not apply in relation to the responsible person; or
(b) section 51 did apply in relation to the responsible person but the maximum interim period for the determination has ended; or
(c) all of the following apply:
(i) section 51 did apply in relation to the responsible person;
(ii) the maximum interim period for an earlier determination of the responsible person's percentage of care for the child has not ended;
(iii) an interim period does not currently apply in relation to the earlier determination;

(iv) the determination referred to in subsection (1) was made while the earlier determination was suspended under this Subdivision.

Section 51 of the Assessment Act relates to circumstances where a ‘care arrangement’ applies in relation to a child, the actual care of the child does not comply with the arrangements under the care arrangement and the person with reduced care of the child is taking reasonable action to ensure the care arrangement is complied with. Section 5 of the Assessment Act states that care arrangement has the same meaning as defined in the A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act). Section 3 of the Family Assistance Act provides that a care arrangement is a written agreement relating to the care of the child, a family violence order, a parenting plan, a state child order or an overseas child order. The Tribunal finds that section 51 of the Assessment Act did not apply. Paragraph 54F(1)(d) is therefore also met.
All of the requirements set out in subsection 54F(1) of the Assessment Act are therefore met. The Tribunal must then revoke the existing determination of care, which reflected Ms Seaborn as having 100% care of [Child 1] and Mr Kington as having 0% care of [Child 1], and make a new care determination.
The Tribunal finds that a new care determination is able to be made under section 49 of the Assessment Act for each of the parties: that Ms Seaborn had 0% care of [Child 1] from 14 April 2020 and Mr Kington had 0% care of [Child 1] from 14 April 2020.
Subsection 54F(3) of the Assessment Act provides the date of effect of the new care determination:
(3) The revocation of the determination takes effect at the end of:
(a) if the Registrar or Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(a) within 28 days after the change of care day for the responsible person--the day before the change of care day; or
(b) if the Registrar or Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person and:
(i) the responsible person's care of the child has increased--the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter; or
(ii) the responsible person's care of the child has reduced--the day before the change of care day.
The Tribunal finds that the Agency was notified (by Centrelink) within 28 days of the change to care arrangements. In these circumstances, subparagraph 54F(3)(i)(a) provides that the revocation of the existing determination of care takes effect as of 13 April 2020. From 14 April 2020, a new determination of care is made that Ms Seaborn had 0% care of [Child 1] and Mr Kington had 0% care of [Child 1].

The Tribunal notes for completeness sake that Mr Kington submitted during the hearing that [Child 1] was de facto with her boyfriend [Mr A] from the time they moved into Ms Seaborn’s house together and that child support should have been ended from this date. The Tribunal did not have before it a ‘terminating event’ decision by Child Support but, for the reasons set out above, is satisfied that [Child 1] should continue to be reflected as being in Ms Seaborn’s care until 13 April 2020. The Tribunal has no information before it about any non-parent carer’s entitlement to child support and therefore makes no finding about whether, and when, a terminating event has occurred in this case.

DECISION

[2021] AATA 2738

20 May 2021

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Judicial Review

Statutory Construction

Procedural Fairness