Tucker and Kenyon (Child support)

[2019] AATA 1696

Tucker and Kenyon (Child support) [2019] AATA 1696 (1 May 2019)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2019/MC015796

APPLICANT:  Mr Tucker

OTHER PARTIES:  Ms Kenyon

Child Support Registrar

TRIBUNAL:  Ms Hamilton-Noy, Member

Ms Sperling, Member

DECISION DATE:  1 May 2019

DECISION:

The Tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – child residing with her grandmother during the week but mother continued to exercise overall responsibility – 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 application relates to a decision by the Department of Human Services – Child Support (the Department) relating to the level of care provided by Mr Tucker and Ms Kenyon to their daughter [Child 1] for child support purposes.

2. A child support assessment was registered with the Department during 2018 and from 18 July 2018 Mr Tucker was reflected as having 86% care of [Child 1] and Ms Kenyon as having 14% care of [Child 1].

3. On 27 July 2018 Ms Kenyon contacted the Department to advise that [Child 1] had been in her 100% care since 22 July 2018.

4. On 18 September 2018 an employee of the Department made a decision to revoke the existing determination of care and to make a new determination that from 22 July 2018 Ms Kenyon had 100% care of [Child 1] and Mr Tucker had 0% care of [Child 1].

5. Mr Tucker lodged an objection to this decision on 9 October 2018.

6. On 21 December 2018 an objections officer of the Department disallowed the objection.

7. On 21 January 2019 Mr Tucker made an application to the Administrative Appeals Tribunal for an independent review of the Department’s decision.  The hearing was held on 1 May 2019, at which both parties participated in the hearing by conference telephone and gave evidence on affirmation.  At the hearing the Tribunal had before it documents provided by the Department (1 to 188) copies of which were provided to the parties prior to the hearing. Both parties confirmed receipt of the documents with the Tribunal.

CONSIDERATION

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988. 

2. The legal issues for the Tribunal in this case relate to an existing determination of care in place, which was that Mr Tucker had 86% care of [Child 1] and Ms Kenyon had 14% care of [Child 1].  The Tribunal must determine whether the existing determination of care is to be revoked and, if so, from what date a new determination of care is to be made.

3. The issue in dispute between the parties is whether Mr Tucker provided any care to [Child 1] after 22 July 2018.  It was not disputed, and the Tribunal accepted, that on 22 July 2018 [Child 1] was at Mr Tucker’s house and contacted her mother to be collected.  After this time she stayed largely with her maternal grandmother.  Mr Tucker submitted that he continued to provide a level of care to [Child 1] after this date on the basis that he paid amounts to her to assist with her support; however, he stated that he accepted that [Child 1] was not with him.  Mr Tucker stated that as of 22 July 2018 he did not have any contact with [Child 1’s] maternal grandmother about her care and was told by [Child 1] that she wanted to stay with her grandmother.  As to his ongoing involvement with [Child 1], he asserted that he was the main point of contact with [Child 1’s] school and attended the school for three meetings during 2018, and that he made social decisions about her attendance at events.  When asked for an example of this, he stated that on some occasions she asked him for money and sometimes she would tell him where she was going but acknowledged that he ‘didn’t exactly give her permission’ to attend events. 

4. Ms Kenyon stated to the Tribunal that as of 22 July 2018 she made an arrangement for [Child 1] to board at her mother’s house.  Her mother is 80 years of age and recently widowed, and while [Child 1] was living with her it was agreed that Ms Kenyon would be responsible for the day-to-day decisions for [Child 1].  After 22 July 2018, [Child 1] was with her grandmother for a week in [Town 1], and Ms Kenyon stayed with them on 24 July.  Ms Kenyon and [Child 1] returned to [Town 2] for the weekend of 27 and 28 July 2018, and [Child 1] returned to [Town 1] to stay with her grandmother so she could get to school easily.  Ms Kenyon stayed with them in [Town 1] on a Wednesday evening and [Child 1] would come to [Town 2] on weekends, and return to [Town 1] on Sundays.  Ms Kenyon stated that while [Child 1] was with her mother in [Town 1], she provided money for food, groceries and petrol and made all decisions on [Child 1’s] behalf.  [Child 1] then moved permanently to [Town 2] with Ms Kenyon in November 2018.

5. The Tribunal considered the Child Support Guide’s section regarding care and had particular regard to 2.2.1 of the Guide, set out at the end of this statement of reasons.  The Tribunal found on the evidence before it that as of 22 July 2018 [Child 1] had indicated to Mr Tucker that she no longer wanted to reside with him.  Following this date, [Child 1] stayed with Ms Kenyon on weekends, and with her maternal grandmother in [Town 1] during the week, so that she could continue her attendance at her school.  Ms Kenyon stayed one night per week with [Child 1] in [Town 1].  Ms Kenyon provided money to her mother to assist with [Child 1’s] day to day needs.  The Tribunal considered that Mr Tucker provided ad hoc amounts to [Child 1] but did not find, from the manner in which he gave his evidence, that he was substantially involved in day-to-day decisions regarding [Child 1], or that he was providing for a significant proportion of [Child 1’s] ongoing costs.

6. The Tribunal considered that Ms Kenyon was the primary carer for [Child 1] from 22 July 2018 onwards and that, during the nights [Child 1] was with Ms Kenyon’s mother, Ms Kenyon had delegated care of [Child 1] to her mother but Ms Kenyon was the parent that continued to have overall responsibility for [Child 1].  As such, the Tribunal considered that from 22 July 2018 [Child 1] was in Ms Kenyon’s 100% care.

7. Section 54F of the Act provides for an existing determination of care to be revoked where the care changes.  The Tribunal found that the Department was notified on 27 July 2018 that the care of [Child 1] had changed from the existing pattern of care (Mr Tucker providing 86% care and Ms Kenyon providing 14% care) to Ms Kenyon having 100% care of [Child 1].  Having regard to the requirements set out in subsection 54F(1) of the Act, the Tribunal was satisfied that this change in care would change the cost percentage for [Child 1] and that section 54G of the Act does not apply, on the basis that Ms Kenyon did not make [Child 1] available to Mr Tucker.  In these circumstances, the Tribunal must make a new care determination. 

8. As Ms Kenyon contacted the Department within 28 days of the care change, the existing determination of care is revoked from 21 July 2018 and the Tribunal makes a new determination that from 22 July 2018 Ms Kenyon had 100% care of [Child 1] and Mr Tucker had 0% care of [Child 1].  The Department’s decision is therefore legally correct and is affirmed.

DECISION

The Tribunal affirms the decision under review.

Child Support Guide 2.2.1

Determining whether care exists

An object of the CSA Act is 'that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings' (section 4(2)(c)). The CSA Act does not define the term 'ongoing daily care', however the Registrar will take into account a number of factors in determining whether a person cares for a child.

In most cases, it will be relatively clear whether and to what extent a person is caring for a child. However, where there is doubt, the Registrar will consider whichever of the following are relevant to the particular case:

·  To what extent the person has control of the child, including having overall responsibility for the child and making:

o     major decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and
o     arrangements for others to meet the needs of the child (delegated care).

·  To what extent the person meets the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra-curricular activities.
·  To what extent the person pays for the costs of meeting the needs of the child.
·  To what extent the person otherwise provides financial support for the child.
·  To what extent the child provides for his or her own needs or has those needs met from another source.
·  To what extent the child is financially independent or financially supported from another source.

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.

Example: Rusty and Nichol have one child, Victoria, who is 16 and working part time after leaving school early. Rusty helps Victoria find a suitable flat and pays the bond so that Victoria can move closer to work. Rusty helps Victoria to pay for rent and utilities, and assists with other expenses such as buying work clothes and arranging and paying for medical appointments. Rusty also helps Victoria with decisions about things like finding alternative study options for further education. Every weekend Rusty does Victoria's laundry and provides cooked meals for the week. The Registrar would determine that Rusty continues to care for Victoria for child support purposes despite Victoria living separately from Rusty.

Example: Marian and Jaquie have one child, Judy, who is 17 and working as an apprentice. Judy decides to rent a room in a share house. Jaquie helps Judy move in and pays the cost of petrol on the occasions Judy comes back for a visit. Jaquie also makes deposits into Judy's bank account every now and then if Judy needs some extra cash to make ends meet. Judy pays for rent, utilities and any other expenses, and shares in household chores including meal preparation and cleaning. Unless there were other relevant factors, the Registrar would determine that Judy is living independently and Jaquie does not care for Judy for child support purposes.