Benstock and Latymer (Child support)

[2023] AATA 3298

Benstock and Latymer (Child support) [2023] AATA 3298 (29 August 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/MC025910

APPLICANT:  Mr Benstock

OTHER PARTIES:  Child Support Registrar

Ms Latymer

TRIBUNAL:Member C Breheny

DECISION DATE:  29 August 2023

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the care of the child – whether child remained in care of parent – 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. Ms Latymer and Mr Benstock are the separated parents of [Child 1], born February 2012 and [Child 2], born October 2013. A child support case has been registered with Services Australia – Child Support (Child Support) since 14 January 2013, and child support has been payable on the basis that Ms Latymer has 100% care of the children. Mr Benstock is liable to pay child support to Ms Latymer.

2. On 19 April 2022 Mr Benstock contacted Child Support and advised that the children are not in Ms Latymer’s care but have been living with other family members since (at least) 16 February 2022. Ms Latymer could not be contacted at the time and on 5 May 2022 a decision was made that neither parent had care of the children from 16 February 2022.

3. On 15 June 2022 Ms Latymer objected to that decision, stating that the children have never left her care and on 16 August 2022 a Child Support objections officer decided to allow the objection and determined that there was no reason to change the existing care percentages.

4. On 4 April 2023, Mr Benstock applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal for an independent review of the objection decision. The application was heard on 29 August 2023. Mr Benstock attended the hearing by telephone and gave sworn evidence. Ms Latymer could not be contacted at the appointed time and did not participate in the hearing. I had before me the Statement and Documents provided by Child Support pursuant to section 37 and section 38AA of the Administrative Appeals Tribunal Act 1975, received on 8 May 2023 and 9 August 2023 respectively (documents numbered 1–174). I also considered evidence provided by Mr Benstock, marked A1–A28.

ISSUES AND CONSIDERATION

1. The relevant legislation is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988.

2. Sections 49 and 50 of the Act provide that a care determination must be made following an application for a child support assessment and requires consideration of the actual, or likely, pattern of care that the parents will have in relation to a child in a particular care period. Section 55C of the Act contains a table that is used to work out a person’s cost percentage.

3. In this case, departmental records indicate that since (at least) 21 February 2015, child support liability had been calculated on the basis that Ms Latymer has 100% care of the children (folio 144). Records also show that Mr Benstock contacted Child Support on 19 April 2022 to advise that the children were constantly in and out of Ms Latymer’s care and he had concerns for the safety of the children, when they were in her care (folio 37).

Mr Benstock’s evidence

1. Mr Benstock said that he was initially contacted by a child protection officer, telling him that there were concerns for the children’s safety. Mr Benstock said that he was trying to find out what was happening by contacting Ms Latymer and other family members. He said that he lives in Melbourne and Ms Latymer and the children are in [City 1], NSW and it was very difficult to get any information about the children’s welfare.

2. He finally contacted [School 1] in [City 1] and [Ms A] (the Deputy Principal) told him that [Child 1] and [Child 2] do not attend school on a regular basis. [Ms A] noted that [Child 1] may have been living with his grandparents in [Town 2][1] for some time.

   [1] About 300km north of [City 1]

3. Mr Benstock expressed concern that Ms Latymer could not be contacted for the hearing. He acknowledged that Ms Latymer provided a letter of support from [Cousin A] but said that [Cousin A] is Ms Latymer’s cousin, and her evidence ought to be disregarded.

4. Mr Benstock said that he understood that [Child 1] has been living with his grandparents (Mr and Mrs [B], Ms Latymer’s relations) and [Child 2] is probably “going back and forth” between Ms Latymer’s home and the grandparents’ home. He said that he was well prepared to have the boys in his care and should not have to pay child support to Ms Latymer.

Ms Latymer’s evidence

1. Ms Latymer did not participate in the hearing. She told Child Support on 15 June 2022 (folio 62) that the children have been in her care since birth and never left her care. She and the children have had no contact from Mr Benstock for many years and he has never visited them. Mr Benstock has had no involvement with the children.

2. Ms Latymer provided a letter from [Cousin A], dated 24 June 2022 (folio 72) stating the following:

   Their biological father reported false information to Child Support and this information has led to [Ms Latymer’s] payments being reduced or stopped…

   I have known [Ms Latymer] all my life and both [Child 1] and [Child 2] have been in her care since birth.

   [Ms Latymer] is the sole carer for her children…their father has not had any contact with them in person or via telephone in over 8 years.

   Moreover, [Child 1] and [Child 2] are of Aboriginal descent and are well known in the Aboriginal community in [City 1].

3. There is no further evidence from Ms Latymer.

Mr Benstock: additional evidence

1. Mr Benstock provided text messages from “[Ms C]” dated 3 March 2021 (folios 17–23). Mr Benstock said that [Ms C] is Ms Latymer’s brother’s girlfriend and she would know what was happening with the children. The text messages relevantly state:

   Your son is getting teased for not having a father!...[Child 1] asked me to get you to call him, that’s why I contacted you….

   Did you know that [Child 1] doesn’t even live with her? I believe Dads should be able to see their kids…

   He lives with [Mr and Ms D] in [Town 2]…They have been living in [Town 2] for the past 2 years and [Child 1] moved there at Christmas. [Child 2 variant] is with [Ms Latymer] in [City 1]…

2. Mr Benstock provided text messages from [Ms D], dated 13 May 2022 (folios 15–16). Mr Benstock said that Ms Latymer’s biological mother died a long time ago and her brother ([Mr D], Ms Latymer’s uncle) adopted Ms Latymer. [Ms D] is Ms Latymer’s “stepmother” and the children’s grandmother. Mr Benstock contacted [Ms D] stating that he had gotten a call from DHS[2] to say that the children had been removed from Ms Latymer’s care and he wanted to know whether the children were safe. [Ms D] responded:

   They are [safe]…I don’t know who is telling you these lies but they are okay…They have me and [Mr D] always…

   [2] Child protection services in NSW

3. Mr Benstock also provided a text message from [Ms A], dated 8 March 2023 (folio 24). It relevantly states:

   [Child 1] hasn’t been at school all week but we received a notification from [Town 2] Public School for a transfer of enrolment for [Child 1]. He presented for enrolment at the school with his nan last Friday and is now enrolled there. He has been there all week and is no longer at our school. [Child 2 variant] is still enrolled with us but has also not been at our school this week.

   We are unsure as yet if [Child 2 variant] also intends to move to [Town 2] or will be staying with us. Sorry, [Mr Benstock] that’s all the information we have at the moment. You’ll be please to know that apparently [Child 1] seemed happy when he arrived at the school in [Town 2] and we know he enjoys staying there with his nan.

4. Mr Benstock provided “Student History Reports” for both [Child 1] and [Child 2] for February 2020 to May 2023 from [School 1] (folios A4–A20). They indicate that both children were often late to school and absent on a regular basis. Relevantly, it appears that [Child 1] was absent for a period of about one month from 1 February 2022 to 4 March 2022 and he has only been at school three times after 9 December 2022.  On 6 March 2023 he presented at [Town 2] Public School (folios A9–A10). [Child 2’s] absences followed a similar pattern (folios A7–A20).

Conclusion

1. Care is generally calculated over a “care period”, which is a period that the Registrar or the Tribunal considers to be appropriate having regard to all the circumstances of the matter (section 50 of the Act). Child Support’s policy in this regard, as set out in Chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed, but it may be a shorter period depending on the circumstances of the case.

2. In this case Mr Benstock notified Child Support on 19 April 2022 that care had changed from about 16 February 2022, such that the children were no longer living with Ms Latymer. Ms Latymer disputed the care change, noting that the children had always been in her care.

3. Ms Latymer provided a letter from [Cousin A] supporting her evidence and Mr Benstock provided text messages from [Ms D] apparently also confirming that the children remained in Ms Latymer’s care. Mr Benstock stated that this evidence ought to be disregarded, as Ms Latymer’s relatives would naturally be supportive of her. On the other hand, the evidence from [Ms C] (Ms Latymer’s “sister-in-law”) ought to be accepted, as [Ms C] was supportive of Mr Benstock’s views.

4. I am cognisant that Ms Latymer has not had the opportunity to comment on the additional evidence provided by Mr Benstock and it is difficult to reconcile the evidence from any of Ms Latymer’s relatives, as they appear to contradict each other. Given these difficulties I am not persuaded to place much weight on the evidence provided by Ms Latymer’s relatives.

5. It seems the most independent evidence is provided by [Ms A] and the [School 1] records. These show that [Child 1] and [Child 2] may not have been present in [City 1] for a period of about a month in February 2022. It is unclear however whether this also means that they were not in Ms Latymer’s care during that time.

6. [Child 1] and [Child 2] continued to attend their school in [City 1] after March 2022. They were often late and sporadically absent, but again this does not indicate that they were not in Ms Latymer’s care during that time. The most persuasive evidence that a care change may have occurred in about March 2023 is [Ms A’s] statement that [Town 2] Public School requested a transfer of enrolment for [Child 1].

7. Mr Benstock notified Child Support in April 2022 that a care change occurred on or about 16 February 2022. Without further supporting evidence I am not persuaded that a care change did occur at that time such that the existing care percentages ought to be revoked.

8. This is the same conclusion reached by the objections officer and I will therefore affirm their decision.

9. For completeness I note that it is open to Mr Benstock to lodge a new care change event with Child Support, if he is of the view that the children have not been in Ms Latymer’s care from a more recent date (e.g. March 2023).

DECISION

The decision under review is affirmed.