Battiste and Cokley (Child support)

[2024] AATA 801

Battiste and Cokley (Child support) [2024] AATA 801 (29 February 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/AC027166

APPLICANT:  Mr Battiste

OTHER PARTIES:  Child Support Registrar

Ms Cokley

TRIBUNAL:Member D Tucker

DECISION DATE:  29 February 2024

DECISION:

The Tribunal sets aside the decision under review and instead decides that, in relation to the care of [the child], from 1 February 2023 Mr Battiste had 0% care, and Ms Cokley had 14% care.

The date of effect of this decision is 1 February 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the pattern of care – 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 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

Assessment

1. Mr Battiste (the father) and Ms Cokley (the mother) are the separated parents of [the child], born 14 June 2005, aged 18 years.

2. From 1 December 2003 there has been a child support assessment registered by Services Australia – Child Support (Child Support), for agency collection from 17 December 2020.

3. Prior to the decision under review, the assessment was based on care percentages of 93% and 7% to the mother and father respectively, from 8 April 2021.

Original care decision

1. On 4 May 2023, the father notified Child Support that, since 1 January 2023, [the child] had stayed at her boyfriend’s house, where she paid board, at least five nights a week. She stayed at the mother’s house for one night per week, and at his house once per week (52 nights per year), equivalent to 14% care.

2. The mother disputed this, stating that [the child] continued to live with her, but stayed at her boyfriend’s house a few nights per week. The mother stated that she continued to be the sole provider of financial support for [the child], with no assistance from the father.

3. On 31 May 2023 the mother provided Child Support with a calendar consistent with her claims.[1]

   [1] page 135 of the hearing papers

4. On 23 June 2023 the father provided an unsworn and undated statement purportedly composed by [the child]’s boyfriend, [Mr A], which attested that [the child] lived predominantly with him and received financial support from both parents.

5. The father also provided a third-party statement from his partner to support his account.

6. On 5 July 2023 the mother provided a third-party statement from her father to corroborate her claim that [the child] lived predominantly with her.

7. On 5 July 2023 the mother told Child Support that she had spoken to [the child] and [Mr A] about the statement purportedly from [Mr A]. According to the mother, [Mr A] denied making any such statement.

8. Child Support subsequently attempted to contact [Mr A] by telephone repeatedly without success.

9. On 13 July 2023 Child Support decided to reject the change in care notified by the father, because the parents had provided conflicting evidence that was not sufficient to establish a change in the pattern of care had occurred.

10. On the same day the father lodged an objection to this decision.

Objection decision

1. On 4 August 2023 the father provided a second statement purportedly written by [Mr A], which was handwritten, undated and unsworn. It stated that since early January 2023, [the child] had lived with him ([Mr A]) and stayed with her mother one or two nights per week, and that both parents provided her with financial support.

2. The father also provided evidence of his regular transfers of money to [the child].

3. On 20 August 2023 the mother told Child Support that the father and his partner had pressured [the child] to provide evidence to support his claims. The mother also stated that [the child] had advised her that from 15 August 2023 she would be living with [Mr A] full-time and be financially independent. Based on this, the mother suggested that the child support assessment should be terminated.[2] The mother also reiterated that prior to this date [the child] had been staying with her “regularly” and accepting her full financial support.

   [2] As prescribed by paragraph 12(2AA)(a) of the Child Support (Assessment) Act 1989.

4. On 23 August 2023 the mother wrote to Child Support again. This time she reported that on 22 August 2023 [the child] had separated from [Mr A] and he had asked [the child] to remove her belongings from his house. The mother also claimed that, according to [the child]:

   ·   She ([the child]) had told the mother that she wished to be financially independent at the urging of the father’s partner.

   ·   [Mr A] had composed both statements attributed to him by the father. However, [Mr A] provided the first statement under pressure from the father’s partner and the second in exchange for $2,500 from the father.

5. The mother also disputed statements by the father about the providence of a car used by [the child], and the father’s claim that he provided for [the child]’s regular costs of living.

6. On 5 September 2023 the father responded, stating that, according to [the child], she had not told the mother anything about [Mr A]’s motivations for providing his statements. Rather, [the child] had supported [Mr A] providing statements. He denied that [Mr A] had been threatened or induced to provide his statements.

7. On 15 December 2023 the mother told Child Support that since 22 August 2023, after separating from [Mr A], [the child] had expressed her intent to spend her time equally between both parents when the father was home from work, as he works remotely two weeks on, two weeks off. This arrangement worked until mid-October, when [the child] decided she would instead spend a few nights on the weekend at her father’s when he was home, and the balance of time would stay with the mother. According to the mother, [the child] had decided this was because the father’s partner made her feel unwelcome.

Application for further review

1. On 7 December 2023 the father made a timely application to this Tribunal for review.

2. On 29 February 2024 both parents provided affirmed evidence via a telephone hearing. The Tribunal also considered relevant documents provided by Child Support.

LEGISLATION AND ISSUES

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) Act1988 (the R&C Act).

2. The legislation provides for Child Support, and the Tribunal on review, with rules for assessing and changing care determinations which are then used as part of the child support formula to assess child support rates.

3. The Tribunal also considered the Child Support Guide (the Guide) where relevant. The Guide contains governmental guidelines and policy as to how child support legislation is to be applied. The Tribunal is not bound to follow government policy, however it will apply it unless there is a cogent reason not to for the sake of consistency in administrative decision-making, in accordance with principles established by the Federal Court.[3]

   [3] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

4. The issues that arise in this case are: Was there a change in care and, if so, what new percentages of care should be applied, and from when?

CONSIDERATION

Was there a change in care?

1. The father provided evidence in the form of screenshots of text messages and his bank account to demonstrate he had transferred significant sums to [the child] for various expenses. These included expenses for her end-of-year ‘schoolies’ trip. [Mr A] also states that the father contributed money to buy groceries or dinner, and for trips to Adelaide and Melbourne. The mother conceded that the father had financially supported [the child] directly, but by paying for non-essential and ad hoc expenses such as holidays and gifts, rather than consistently paying for her regular costs of living.

2. The father’s communication with Child Support and his evidence to the Tribunal suggests that he would like to have the money he provided to [the child] reckoned in lieu of his child support obligations. However, payments made directly for the benefit of the child of an assessment can be considered in lieu of child support only under limited circumstances. Generally, the agreement of the receiving parent is required. There are exceptions to this rule, but only in circumstances which are not present here (section 71C of the R&C Act).

3. Section 54A of the Act allows for percentages of care to be determined according to the number of nights the child is in each parent’s care. In the absence of any contention by either parent that care should be otherwise determined, the Tribunal will use this approach.

4. Regarding [the child]’s living arrangements from 1 January 2023, the mother and the father provided oral evidence broadly consistent with their previous statements to Child Support. The mother claimed that from 1 January 2023 [the child] only stayed at [Mr A]’s house on weekends and occasionally mid-week. It was not until 15 August 2023 that [the child] said she wanted to live with [Mr A] full-time, and on 22 August 2023 after her relationship with [Mr A] broke down, she decided that she would divide her time equally between each of her parents.

5. There is no way to harmonise the evidence offered by the father and mother regarding [the child]’s living arrangements. According to the mother’s evidence, it could be argued that she had 100% care of [the child]. According to the father’s account he and the mother each had around 14% care.

6. The Tribunal attaches little weight to the statements provided by the father’s partner, and the statement from the mother’s father, as it cannot be satisfied of their independence.

7. The Tribunal also attaches little weight to the calendar provided by the mother. Although she claims to have maintained it contemporaneously from 2021, there is no way to corroborate this. In the Tribunal’s experience, this would be a rare feat. According to the father, [the child] first saw the mother’s care calendar sometime after January 2023 (as discussed below). If true, this weighs against the likelihood that the mother had been maintaining it contemporaneously since 2021.

8. Arguably, [Mr A]’s letters are the only independent evidence available to the Tribunal. However, the probity of his evidence is also disputed. The mother accepts that [Mr A] wrote both letters but argues they should be disregarded as they were suborned by the father. The father claims that [Mr A] readily agreed to write his first letter and volunteered to write his second letter.

9. The father explained that his home is only a few hundred metres from the one that was shared by [the child] and [Mr A], so he saw them often. Because [Mr A] was his daughter’s boyfriend, he treated him “like part of the family”. This included gifting him a few hundred dollars to assist with the purchase of a car. However, the father emphasised that he had not induced or pressured [Mr A] to provide evidence in his favour.

10. According to the father, [the child] told him that she had first seen the mother’s care calendar after [Mr A] wrote his first letter. She asked the father to explain its purpose, and when he did so, [the child] suggested that [Mr A] write a second letter to explain their situation clearly and fully.

11. According to the father, when [the child] told the mother that [Mr A] had written a second letter for Child Support, the mother became very angry, something which [the child] had not expected and found upsetting.

12. The Tribunal must make findings based on the available evidence and the balance of probabilities.

13. The Tribunal finds that [Mr A] did write the two letters attributed to him, and that they are best available evidence of [the child]’s living arrangements during the period in question. The letters are consistent with each other, and the alternative finding, that on two separate occasions [Mr A] fabricated evidence for the benefit of his girlfriend’s father, is inherently less likely.

14. In his first letter, [Mr A] states he and [the child] were in a relationship since October 2022, and:

    We currently live together in share accommodation at [redacted]. We have lived here since the beginning of February 2023 with two other people and our two cats.

    …

    [The child] and I stay at her mum’s place in [redacted] on Tuesday nights most weeks, and depending on everyone’s work or sport and stuff, sometimes it’s Thursday nights as well.

15. The Tribunal notes [Mr A]’s reference to staying with the mother on Tuesday nights on most weeks, and sometimes on Thursday nights. Based on this, the Tribunal finds that the mother had, on average, one night per week of care from 1 February 2023.

16. In reference to the father’s home, [Mr A] states:

    We have stayed there also, but don’t sleep there regularly as our place is only 300m away…. [the child] has not stayed his house does go there frequently for lunches and dinner while he is home…

17. Based on the evidence outlined above, the Tribunal finds there was a change in care from 1 February 2023, notified by the father on 4 May 2023, such that the father had 0% care and the mother had 14% care.

18. The Tribunal notes that on 19 January 2024 Child Support decided that there had been a change in care from 22 August 2023, such that each parent had 50% care of [the child]. This decision is beyond the scope of this review. The Tribunal also notes that the assessment entered on 17 November 2023 was when [the child] completed her last year at high school.

19. Section 54F of the Act requires that a decision-maker must revoke an existing percentage of care if they are satisfied there has been a change in care that impacts a carer’s cost percentage, and section 54G does not apply (as in this case).

20. Section 54G will apply in a situation where a parent who was to have at least regular care of a child has had no care or less than regular care despite the other parent making the child available, and the other parent notifies the Registrar of the change in care within a reasonable period. In this case section 54G of the Act cannot be applied because the change in the pattern of care was identifiable to the father from 1 February 2023, but he did not notify Child Support of it until 4 May 2023. The Tribunal is satisfied that that is not a reasonable period in the circumstances.

21. The Tribunal therefore finds that section 54F must be applied to revoke the existing care determination from 1 January 2023, because the new care percentages impact the mother’s cost percentage (section 55C of the Act).

22. Subsection 54F(3) of the Act states:

    The revocation of the [existing care] determination takes effect at the end of: 

    (a)if the Registrar or Secretary is notified, or otherwise becomes aware, of the [change in care] 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 [change in care] 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.

1. Because the father notified Child Support of the change in care on 4 May 2023, more than 28 days after it occurred, and both parents had reduced care, subparagraph 54F(3)(b)(ii) applies.

2. Therefore, the revocation of the parents’ percentages of care takes effect at the end of the day before the change of care day (31 January 2023) and the new percentages of care apply from 1 February 2023.

3. The effect of this decision is to terminate the assessment from 1 February 2023 on two grounds. First, [the child] had become a member of a couple from that date (paragraph 12(1)(e) of the Act) and second, neither parent had at least 35% care of the child (paragraph 12(2AA)(a) of the Act)

DECISION

The Tribunal sets aside the decision under review and instead decides that, in relation to the care of [the child], from 1 February 2023 Mr Battiste had 0% care, and Ms Cokley had 14% care.

The date of effect of this decision is 1 February 2023.