Bennet and Moven (Child support)

[2018] AATA 4517

Bennet and Moven (Child support) [2018] AATA 4517 (6 November 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/AC014953

APPLICANT:  Mr Bennet

OTHER PARTIES:  Child Support Registrar

Ms Moven

TRIBUNAL:Member Y Webb

DECISION DATE:  06 November 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS
CHILD SUPPORT – percentage of care – what was the pattern of care that the parents were likely to have from the start date of the assessment – determination of percentage of care correctly made – 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 review is about the percentages of care of Mr Bennet and Ms Moven in relation to two of their children from 19 October 2016.

2. Mr Bennet and Ms Moven have 13 children although some of the children are now adults. This review relates only to the children [Child 1] and [Child 2].  The child [Child 1] is no longer a child of the assessment having turned 18 years old in March 2018.  The child [Child 2] is now 14 years old.

3. There are no court orders or written parenting plans in relation to the care of the children.

4. On 19 October 2016, Ms Moven contacted the Department of Human Services (Child Support Agency) and applied for a child support assessment including for the children [Child 1] and [Child 2].  At the time of her application Ms Moven informed the Child Support Agency that she had 100% care of the children.

5. By letter dated 7 December 2016, the Child Support Agency advised that it had accepted Ms Moven’s application and recorded the care of the children [Child 1] and [Child 2] as 100% to Ms Moven and 0% to Mr Bennet for the period from 19 October 2016.

6. On 16 December 2016, Mr Bennet objected to that decision. He stated that he had had 100% care of [Child 1] and [Child 2] since 3 October 2016.

7. On 11 February 2017, an objections officer disallowed Mr Bennet’s objection and found that Ms Moven had had 100% care of [Child 1] and [Child 2] and that Mr Bennet had had 0% care since 19 October 2016.

8. On 4 September 2018, Mr Bennet requested review by the Administrative Appeals Tribunal (the Tribunal).

9. Both parents attended the hearing on 6 November 2018 by way of a telephone conference and both gave sworn evidence.

10. Prior to the hearing Mr Bennet provided the following documentation (which has been marked Exhibit A1 to A7):

    ·A letter dated 11 May 2018 from [a] hospital regarding [Child 2].

    ·A letter from [School 1] dated 4 June 2018 regarding [Child 2].

    ·A letter (undated) from Mr Bennet’s neighbour.

    ·A letter dated 18 January 2017 from [Child 1] to Mr Bennet.

    ·Records of Baptism regarding [Child 2].

11. Prior to the hearing Ms Moven provided a submission dated 31 October 2018 (which has been marked Exhibit B1).

12. Prior to the hearing [Child 1] provided an email dated 31 October 2018 (which has been marked Exhibit D1).

13. The Tribunal was also provided with relevant documentation by the Child Support Agency (marked Exhibit C1).

14. It is not disputed that a new change of care was recorded for [Child 1] and [Child 2] from 5 February 2018 (with a date of effect for child support purposes from 20 April 2018).

ISSUES

1. The issues for the Tribunal to determine are:

   a)What were the actual care arrangements in relation to [Child 1] and [Child 2] in the relevant care period?

   b)Should a new initial determination of a percentage of care for [Child 1] and [Child 2] be made? If so, what is the percentage of care and from when should it apply?

CONSIDERATION

1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act1988 (the Registration and Collection Act).

2. Amendments to the Assessment Act and the Registration and Collection Act were made effective from 23 May 2018 and 1 July 2018 respectively but this matter predates those amendments, and the legislation as it was prior to those dates applies.

3. Percentage of care determinations are made under section 49 and/or section 50 of the Assessment Act. Section 49 of the Assessment Act provides authority to make a determination in circumstances where a parent has no care of the child. Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child during the relevant care period, the Registrar must determine that person’s percentage of care for the child during the care period. The percentage determined must be the percentage that corresponds with the actual care of the child that the Registrar is satisfied the responsible person has had, or is likely to have, during the relevant care period.

4. The pattern can be established either according to a “care arrangement” (such as court orders) or the actual care that is taking place. Depending on whether a pattern has been established or not, the Tribunal can then proceed to determine the percentage of care applying the appropriate law (sections 49 and 50 of the Assessment Act).

5. In this case, the Tribunal is required to consider the actual care during the care period. The Assessment Act provides that the care percentage must be determined for a “care period” which is effectively defined as “…such period…as the Registrar considers to be appropriate having regard to all of the circumstances”. Usually (but not necessarily) the care period will be a 12 month period starting from the date the care of the child changed and reflecting the actual care that a person has, or is likely to have, during the care period.

6. Section 54A then provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period. 

7. In this case, Mr Bennet and Ms Moven did not contend that nights were an unsuitable measure of the care of the children and the Tribunal finds that nights are an appropriate method of ascertaining the actual care of [Child 1] and [Child 2] in this case.

Mr Bennet’s evidence and contentions

1. Mr Bennet contended that he had had 100% care of [Child 1] and [Child 2] since 3 October 2016.  He asserted that [Child 1] and [Child 2] came to stay with him for the October school holidays and that after the holidays they continued to reside with him.  He stated that he had 100% care of [Child 1] until he returned to living with Ms Moven on 18 January 2017.  In relation to [Child 2], Mr Bennet stated that he has continued to be in his 100% care since 3 October 2016 and remains in his care. 

2. Mr Bennet asserted that Ms Moven was not being truthful when she claims that [Child 1] and [Child 2] were in her care from 19 October 2016.

3. Mr Bennet provided a letter dated 16 December 2016 from [School 2] which stated that “Mr Bennet is listed as the father and residing address for ([Child 2]) at our school since 3/10/2016”.

4. He also provided a copy of a learner’s permit with his address on the back showing a change of address on 15 November 2016.  The front of the permit is illegible but the Tribunal infers that the name on the permit is [Child 1]’s name.

5. Mr Bennet also provided a letter dated 17 January 2017, from a neighbour, [who] stated that he “has been living next door to Mr Bennet, [Child 1] and [Child 2] since October 2016. He stated “I see Mr Bennet and the 2 boys regularly around the unit heading to school and off to visit their friends”.

6. He also provided two letters from another neighbour, [Ms A], one of which (undated) states that [Child 1] and [Child 2] “…have been living with Mr Bennet at (Mr Bennet’s address) since October 2016 when they came for the holidays”.  The other, also undated and from [Ms A] (and within the C1 papers), states that “I am writing to verify that Mr Bennet has his two kids every Friday, Saturday and Sunday each week”.

7. Mr Bennet provided a letter from [a doctor], dated 11 May 2018, which states that [Child 2] is a regular patient of the [specialist] Clinic and is accompanied by his father.  It states that [Child 2] “has been residing with his father from October 2016 who we believe is his sole carer”.

8. He also provided a letter from the enrolment officer at [School 1] dated 4 June 2018 stating that [Child 2] was enrolled by his father on 6 February 2017 and his residential address is his father’s address.

9. Mr Bennet provided a letter dated 17 January 2017 from [Child 2] which stated that he has been living with his father since 16 October 2016.  His letter describes why he prefers living at his father’s house compared with his mother’s house.

10. Mr Bennet also provided a letter dated 18 January 2017 from [Child 1] thanking his father for looking after him and [Child 2] for the last two months and advising that he is moving back to his mother’s house.

Ms Moven’s evidence and contentions

1. Ms Moven contended that [Child 1] and [Child 2] were in her 100% care from the date that she separated from Mr Bennet which she asserted was September 2015.  She agreed that she contacted the Child Support Agency on 19 October 2016 to register the case and seek collection by the Child Support Agency.

2. Ms Moven told the Tribunal that although [Child 1] and [Child 2] visited their father they did not stay at their father’s house overnight on a regular basis.  She advised that [Child 2] did start living and staying overnights with his father from February 2018 but that this was not happening prior to that date. She stated that even since February 2018, [Child 2] often stays at her house overnight.  She stated that her house and Mr Bennet’s house are within walking distance of each other.

3. Ms Moven stated that Mr Bennet was constantly demanding that she give him money and she has given him considerable sums of money both before and after separation even though he has not had the care of the children (with the exception of [Child 2] but only since February 2018).

4. Ms Moven stated that Mr Bennet is pursuing this matter to cause trouble for her. 

5. Ms Moven stated that in relation to the letters from [Child 1] and [Child 2], the children were told to write those letters by Mr Bennet and the contents are false.

6. Ms Moven stated that one of the letters from [Ms A] does not relate to their children but to twins that Mr Bennet has with another wife.

7. Ms Moven provided a letter dated 22 December 2016 from her eldest child (who was born in 1996).  This stated that [Child 1] and [Child 2] live with “my mother Ms Moven 100% of the time (day and night)”.  He stated “my brothers do go to visit my dad but only for a short amount of time, mainly a couple of hours”. 

8. Ms Moven provided a further letter (undated but faxed to the Child Support Agency on 23 December 2016) from her eldest daughter.  The eldest daughter stated that she declares that [Child 1] and [Child 2] “live here with the rest of us at (Ms Moven’s address).”  She stated that [Child 1] and [Child 2] “do go visit our father, Mr Bennet most of the time.  This is because he does not come by to visit us due to the conflict between him and my mum.”  She stated that her father “wishes to split up the family”. 

9. Ms Moven also provided a letter from [School 2] dated 29 November 2016 which stated that [Child 2] was enrolled at the school on 13 February 2012 and resides at the mother’s address.

10. She also provided a further letter from [School 3] dated 2 December 2016 stating that [Child 1] was enrolled on 1 February 2016 as a full-time student and that his address is (Ms Moven’s) address.

The Tribunal’s consideration

1. The evidence in this case is contradictory.  Mr Bennet was adamant that [Child 1] was in his 100% care from 3 October 2016 to 18 January 2017 and that [Child 2] has been continuously in his 100% care since 3 October 2016.

2. Ms Moven on the other hand was adamant that she had 100% care of both [Child 1] and [Child 2] since the separation from Mr Bennet in September 2015 and that although the two children visited Mr Bennet regularly, he did not have any pattern of overnight care for [Child 1] and did not have a pattern of overnight care of [Child 2] until February 2018.

3. The Tribunal acknowledges that Mr Bennet provided statements from two neighbours but the Tribunal is not persuaded that either of these persons was in a position to know whether [Child 1] and [Child 2] were spending nights and residing with Mr Bennet or whether they were visiting him as their mother and siblings assert.

4. The Tribunal accepts that the learner’s permit belonged to [Child 1] and that it included a change of address but this does not prove that [Child 1] was in the 100% overnight care of his father.

5. The Tribunal accepts that the statements from [School 2], [School 3] and the [Hospital] were all written in good faith but none of them are very helpful in assisting the Tribunal to determine a pattern of overnight care in the relevant period.

6. In relation to the statements from [Child 1] and [Child 2], Ms Moven stated that Mr Bennet directed the boys to write those statements and that they are false.  Mr Bennet responded that he agreed that he asked the boys to write statements that they were living with him.  However, he stated that he did not stop [Child 1] from returning to live with his mother.  While it is very difficult to know where the truth lies in relation to the care of [Child 1] and [Child 2], the Tribunal has concerns that the statements from [Child 1] and [Child 2] may have been obtained under duress.  A further letter which [Child 1] wrote recently tends to add weight to the Tribunal’s concerns that the statements from [Child 1] and [Child 2] were not provided independently and altogether voluntarily.

7. On balance, the Tribunal concurs with the objections officer that the most compelling third party evidence came from the eldest child and the eldest daughter of Mr Bennet and Ms Moven because they were in a better position to witness a pattern of overnight care than the other third parties.  They both asserted, when they wrote their statements in December 2016, that Ms Moven had 100% care of [Child 1] and [Child 2].

8. Having considered the contradictory information provided, the Tribunal is not convinced that there is sufficient evidence to support a determination that Mr Bennet had care of [Child 1] and [Child 2] in the relevant period from 19 October 2016.  The Tribunal considers that the evidence is not compelling enough to warrant overturning the determination made by the Child Support Agency that Ms Moven had 100% care of [Child 1] and [Child 2] from 19 October 2016.

9. Hence, the Tribunal concludes that the pattern of care from 19 October 2016 was that Ms Moven had 100% care of [Child 1] and [Child 2] and Mr Bennet had 0% care from 19 October 2016.

10. As the Tribunal agrees with the decision of the objections officer of 11 February 2017, it is not necessary to consider section 95N of the Registration and Collection Act and determine whether Mr Bennet’s circumstances were special to the extent that they prevented him from applying for review by the Tribunal within 28 days after the notice of the decision was given.

DECISION

The decision under review is affirmed.