Steinmann and Steinmann (Child support)

[2020] AATA 3656

Steinmann and Steinmann (Child support) [2020] AATA 3656 (15 July 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC019091

APPLICANT:  Mr Steinmann

OTHER PARTIES:  Child Support Registrar

Mrs Steinmann

TRIBUNAL:Member K Buxton

DECISION DATE:  15 July 2020

DECISION:

The decision under review is varied so that [Child 1] is to be recorded as in the 0% care of Mr Steinmann and the 0% care of Mrs Steinmann from 25 January 2020.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – whether a child support terminating event had occurred – decision under review varied

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

1. Mrs Steinmann and Mr Steinmann are the parents of [Child 1], and a child support case is registered with the Child Support Agency (CSA) in respect of [Child 1] and their other child, [Child 2]. This review application concerns a decision of the CSA about the recorded care for only [Child 1].

2. [Child 1] had been recorded by the CSA as in the 100% care of Mr Steinmann and the 0% care of Mrs Steinmann when, on 31 January 2020, Mrs Steinmann notified the CSA that [Child 1] was no longer in the care of either parent and that this had been the case since 17 January 2020. On 6 April 2020 the CSA decided to record [Child 1] as in the 0% care of Mrs Steinmann and Mr Steinmann from 17 January 2020. Mr Steinmann objected to that decision on 20 May 2020 objections officer decided to disallow the objection.

3. Mr Steinmann objected to that decision. He stated that a Court order existed in relation to care and he requested that an interim care period for [Child 1] be recorded to reflect that Court-ordered care. His objection was disallowed.

4. Mr Steinmann sought review of the decision with the tribunal. Mrs Steinmann was joined as a party to the review. At the hearing on 15 July 2020 the tribunal heard sworn evidence from Mr Steinmann and Mrs Steinmann, who appeared by telephone. In reaching a decision, the tribunal has considered that evidence, together with the Statements and Documents provided by the CSA under subsection 37(1) of the Administrative Appeals Tribunal Act 1975 (Exhibit 1).

CONSIDERATION

1. The tribunal is to determine whether there has been a care change for [Child 1]. The law relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 of the Act require a new determination of percentage of care for a child to be made in certain circumstances. First, the question arises as to whether the existing care determination should be revoked. Subsection 54F(1) provides that the determination must be revoked in circumstances where a different cost percentage would apply if the care percentage determination was changed. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to the child.

2. [Child 1] was recorded as in the 100% care of Mr Steinmann when, during the school holidays in January 2020, she attended a camp. Mr Steinmann arranged to collect her after the camp on 17 January 2020 and to attend a local McDonald’s restaurant. However, when they arrived at the restaurant [Child 1] went into the vehicle of a family friend and left. Mr Steinmann stated that he did not know this was to happen, and he set about locating [Child 1]. During the previous week the parents had exchanged emails in which the prospect of [Child 1] spending time with her sister [Child 2] was raised, although to emails to not show that an agreement was reached that this would occur and neither parent submitted that this had been pre-arranged.

3. Mrs Steinmann stated that [Child 2] had travelled some distance with a family friend, who was also the uncle of [Child 1]’s school friend, to see her sister [Child 1] and her friends in the local area, and that [Child 1] spent the time from 17 January 2020 to 25 January 2020 with the school friend and her uncle, his parents and [Child 2]. Mrs Steinmann also stated that, although [Child 2] was present at the McDonald’s restaurant at the same time as [Child 1] departed with the family friend, [Child 2] was not aware that [Child 1] was not intending to depart with [Child 1] at that time.

4. Text messages produced to the CSA by Mr Steinmann indicate that he communicated with [Child 1] between 17 and 26 January 2020 and he made a plan to collect [Child 1] from the McDonald’s carpark on 26 January 2020. [Child 1] did not return to Mr Steinmann’s care on that date. Mr Steinmann accepted that, from 26 January 2020, neither parent had care of [Child 1]. However, he submitted that he was still responsible for [Child 1] until 26 January 2020 and that his pattern of 100% care of [Child 1] did not change until that date. He stated that he had supplied [Child 1] with extra phone credit that she was using to communicate with her and that he continued to make arrangements for her to receive dental care and for her return to school. He also stated that [Child 1] had sufficient personal items such as her clothing with her for the extended time away from his overnight care after her camp and that he had supplied her with those items.

5. Mrs Steinmann gave evidence that [Child 1] had determined not to return to the care of Mr Steinmann and presented to the Department of Child Safety on 17 January 2020 to inform the Department of this intent and of her intent to suicide if she returned to his care. Mrs Steinmann also stated that, from 25 January 2020, [Child 1] entered the care of her friend, [Ms A], and [Ms A] produced a letter to the CSA to that effect. Mr Steinmann did not accept the correctness of either of these statements, although he did accept that [Child 1] has subsequently been cared for by [Ms A]. The tribunal finds that the letter from [Ms A] is sufficient evidence that, from 25 January 2020, [Child 1] was in her care. There is no real basis to question the accuracy of the statements contained in [Ms A]’s letter. Mr Steinmann submitted that [Ms A] was an unreliable witness as she was a friend to Ms Steinmann, but he did not produce any alternative evidence as to where [Child 1] was being cared for and the tribunal accepts the letter as being an accurate account.

10.  It is unclear what arrangements were made for the overnight care of [Child 1] between 17 January 2020 and 24 January 2020. Both parents stated that they thought [Child 1] was with friends, and it seems she was also spending time with [Child 2] as the parents has earlier discussed by email. It appears that this took place at the home of her school friends’ grandparents. Mr Steinmann was expecting [Child 1] to return to his care and considered that [Child 1] was having holiday time with her friend and her sister. Mrs Steinmann stated that [Child 1] did not expect to return to Mr Steinmann’s care at that time and relied on the concerns she stated that [Child 1] had expressed to the Department of Child Safety. The third party carer, [Ms A], stated in her letter to the CSA that [Child 1] entered her care on 25 January 2020 and the tribunal accepts this evidence. Given that Mrs Steinmann did not have the overnight care or responsibility for [Child 1] at any relevant time, and [Ms A] did not have [Child 1] in her care until 25 January 2020, it follows that the tribunal cannot be satisfied that a permanent change in the likely pattern of actual care took place until that date. It was reasonable for Mr Steinmann to conclude that a temporary arrangement had been made and that [Child 1] would return to his care. However, from 25 January 2020, [Ms A] was providing overnight and other care for [Child 1] and from this date it is proper to record a permanent change to the care arrangements for [Child 1].

11.  The tribunal is therefore satisfied that, from 25 January 2020, [Child 1] ceased to be in the care of either parent, but the tribunal is not satisfied that the pattern of care changed earlier than that date. The previously recorded care determination for [Child 1] of 100% care to Mr Steinmann and 0% to Mrs Steinmann must be revoked and a new determination made, from 25 January 2020, to reflect [Child 1] as in the 0% care of Mrs Steinmann and the 0% care of Mr Steinmann from that date. As the date on which the tribunal had decided that care has change is different from that determined by the objections officer in the decision under review that decision is varied to give effect to the findings of the tribunal.

DECISION

The decision under review is varied so that [Child 1] is to be recorded as in the 0% care of Mr Steinmann and the 0% care of Mrs Steinmann from 25 January 2020.