Ali and Ali (Child support)

[2020] AATA 5102

Ali and Ali (Child support) [2020] AATA 5102 (29 October 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/MC019773

APPLICANT:  Mr Ali

OTHER PARTIES:  Child Support Registrar

Ms Ali

TRIBUNAL:Member J Longo

DECISION DATE:  29 October 2020

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 – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – 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

1.Mr Ali and Ms Ali are the parents of [the child]. Mr Ali is the parent liable to pay child support. From 8 October 2016, the Department of Human Services (now Services Australia) – Child Support (the Department) had determined that Ms Ali had a percentage of care for [the child] of 100% and that Mr Ali had a percentage of care of 0% for [the child].

2.On 2 January 2020, Mr Ali notified the Department that there had been a change in the care for [the child]. Mr Ali stated that neither he nor Ms Ali had the care of [the child] since 27 October 2019. On 23 March 2020, the Department made a decision to refuse to make a new determination of care for [the child].

3.On 1 April 2020, Mr Ali lodged an objection to the above care decision. On 21 August 2020, the Department disallowed Mr Ali’s objection.

4.On 2 September 2020, Mr Ali lodged an application to the Administrative Appeals Tribunal (the tribunal) for a review of the decision. Mr Ali and Ms Ali spoke to the tribunal via conference telephone and gave sworn evidence. In making its decision, the tribunal took into consideration the documents provided by the Department (125 pages), which were also sent to Mr Ali and Ms Ali, and the documents submitted to the tribunal by Mr Ali (A1toA76).

CONSIDERATION

5.The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act).

What is the care of [the child]?

6.It is not in dispute that the Department had recorded the care of [the child] as Mr Ali having 0% and Ms Ali having 100% of the care from 8 October 2016. It is also not in dispute that Mr Ali contacted the Department on 2 January 2020 to advise that the care of [the child] had changed and that neither parent was providing care. The tribunal finds accordingly. The tribunal notes that there are court orders in relation to the care of [the child] made in 2011.

7.Mr Ali stated at the hearing that he did not have the care of [the child] but rather he was in the care of a third party, namely [Mr A]. Mr Ali stated that he had not had any contact with the children or Ms Ali personally but rather had been told by [Ms B] that [the child] is living with [Mr A] and providing him with care. Mr Ali stated that he did not have an issue with [Mr A] providing care but rather he did not agree with being subject to an assessment of child support where Ms Ali is the recipient parent in circumstances where the care is not being provided by Ms Ali.

8.Mr Ali stated that he assumed that [the child]’s needs, such as food, clothing and other requirements, are being met by [Mr A] but he is not sure whether these funds are provided to [Mr A] or from [Mr A]’s own resources. Mr Ali stated that there was no indication that [the child] is meeting his own needs from his own resources. Mr Ali submitted that the statutory declarations provided by Ms Ali should not be relied upon because it does not reflect what had already been accepted by the Department in relation to the care of their other child, [Child 2]. Mr Ali also submitted that the reliance by the Department on the school evidence and the statutory declarations was incorrect as there were credibility issues regarding the statements made to the Department.

9.The tribunal notes that Mr Ali has referred to Ms Ali suffering from a mental illness and that on this basis is incapable of caring for [the child]. These submissions are based on events relating to child support, in respect of another child, which occurred in 2016. Mr Ali has submitted that due to Ms Ali’s mental illness and hospitalisations, Ms Ali was not providing care and instead [Mr A] was providing care.

10.The evidence relied upon by Mr Ali was statements made in email correspondence from [Ms B]. Mr Ali has also relied upon email correspondence from [Mr C] as evidence of Ms Ali’s mental health. The issue of whether Ms Ali suffers from a mental illness is not material to the considerations before the tribunal, as the tribunal is not making any determination about Ms Ali’s capacity to provide care. In addition, the evidence regarding this issue, as indicated in the email correspondence provided, relates to what was occurring in 2016.

11.Mr Ali has also referred to the Department’s failure to provide him access to information provided by Ms Ali. The tribunal notes that this information was provided prior to the hearing to Mr Ali. Notwithstanding this issue, it is not within the consideration of this application to determine the Department’s procedures. The tribunal has no jurisdiction to determine these matters.

12.Ms Ali stated to the tribunal that she has had the care of [the child] since the court orders were made in 2011. Ms Ali stated that she and [the child] were residing in a cottage on the same property as [Mr A], while [Mr A] was living in the main house. Ms Ali stated that [Mr A]’s brother was also living on the property.

13.Ms Ali stated that the evidence from [Ms B] was not correct. Ms Ali confirmed that she was in hospital and that although she was sleeping at the hospital, [the child] was still in her care. She stated that she gave money to [Mr A] and made all decisions relating to his health, socialising, extra-curricular activities. She stated that she would discuss these activities, such as when [the child] wanted to socialise, with [Mr A] and give her consent, provided [Mr A] was able to take [the child]. She stated that due to [Mr A]’s age he was limited in what he was able to do.

14.Section 50 of the Act requires a new determination of a percentage of care to be made where the tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period as considered to be appropriate having regard to all the circumstances. Mr Ali’s notification to the Department on 2 January 2020 and his submissions to the tribunal state that the care changed from 27 October 2019.

Should the existing care determinations in relation to [the child] be revoked?

15.Subsection 54F(1) of the Act sets out circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child or children. Mr Ali notified the Department that the care taking place did not correspond with the existing care of [the child] on 2 January 2020. Ms Ali has stated that there has been no care change.

16.The tribunal is required to consider what the actual care of [the child] was or is likely to be during the care period. The tribunal has accepted Mr Ali’s and Ms Ali’s submissions regarding the care of [the child].

17.The evidence of Mr Ali relies, in part, on matters that occurred in 2016. In addition, Mr Ali is reliant on statements made to him in email correspondence from [Ms B], which are said to be statements made to [Ms B] by [the child]. The email reads as follows:

With [the child] I did ask him does he want to live here swell (sic) but he has decided he wants to stay living with pop and stay at his school.

18.While this evidence does indicate that [the child] is living with [Mr A], it does not indicate that Ms Ali is not living at the same property. Ms Ali gave evidence that she was residing in a cottage on the property with [the child], with [Mr A] in the main house. A statutory declaration from a third party provided to the Department also indicates that she has care of [the child]. Furthermore, a letter from [the child]’s principal was also sent to the Department which stated that he resided with Ms Ali. It was acknowledged by Ms Ali that she was hospitalised for a period, she stated she was still responsible for the care of [the child] and making decisions regarding his care.

19.It is open to the tribunal to examine other considerations, such as the extent of control of the child, including their overall responsibility for the child and making major decisions relating to who the child spends time with and the child’s health, education, discipline, recreational and/or social activities, and any arrangements for others to meet the needs of the child (delegated care). In addition is the consideration of whether the person meets the needs of the child by paying for the costs of meeting the needs of the child.

20.The tribunal cannot be satisfied that Ms Ali’s care of [the child], based on the evidence provided by Mr Ali to the Department and to the tribunal, stopped from 27 October 2019. The evidence provided to substantiate care was not occurring is insufficient to support a positive finding that Ms Ali no longer has the care of [the child]. Mr Ali does not have personal knowledge of the care arrangements for [the child]. The third-party evidence provided in support of his submissions, also do not support a positive finding that the care was not occurring. Ms Ali has given sworn evidence, including a statutory declaration of the care provided. In addition, there is additional third-party evidence on the Department file, including evidence from [the child]’s school, which states that [the child] continues to reside with Ms Ali.

21.Accordingly, the tribunal determines that there is insufficient evidence before the tribunal which shows that Ms Ali’s care of [the child] is no longer occurring. Therefore, the tribunal affirms the decision under review.

DECISION

The tribunal affirms the decision under review.