Berger and Samson (Child support)

[2019] AATA 5132

Berger and Samson (Child support) [2019] AATA 5132 (11 September 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC016695

APPLICANT:  Miss Berger

OTHER PARTIES:  Child Support Registrar

Mr Samson

TRIBUNAL:Member J D’Arcy

DECISION DATE:  11 September 2019

DECISION:

The decision under review is set aside and a new decision substituted that there was no change to the existing percentages of care for the child [Child 1].

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 set aside and substituted

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 concerns the care percentages used in a child support assessment made by the Department of Human Services – Child Support (Child Support) for  [Child 1], the [child] of Miss Berger (previously known as [Ms A]) and Mr Samson.

2. From 1 July 2015 Miss Berger was assessed to have 54% care of [Child 1] and Mr Samson was assessed to have 46% care of his [child], in accordance with the Family Court order dated [March] 2010.

3. On 8 January 2019 Mr Samson reported a change of care arrangements stating that he had 100% care of his [child] from 8 January 2018.

4. On 30 March 2019 Child Support refused to change the assessment.

5. Mr Samson objected to the decision and on 6 June 2019 Child Support allowed his objection and decided that Mr Samson had 100% care of [Child 1] with effect from 8 January 2019.

6. Miss Berger applied for a review of this decision to the Administrative Appeals Tribunal (the tribunal) on 6 June 2019.

7. Child Support provided Miss Berger, Mr Samson and the tribunal with the subsection 37(1) of the Administrative Appeals Tribunal Act 1975 statement and documents (205 pages). Miss Berger provided additional information marked A1 to A105.

8. The hearing took place on 11 September 2019 with Miss Berger, accompanied by her legal representative Ms [B], in person and Mr Samson in person.

ISSUES

1. The issues which arise in this case are:

   ·       should there be a change to the care percentages used in a child support assessment for the period? and, if so,

   ·       what care percentages should be used? and

   ·       what is the date of the change to the care percentages?

CONSIDERATION

Has there been a change to the care pattern for [Child 1]?

1. Miss Berger asserts that she continues to have 54% care of [Child 1] in accordance with the Family Court order. Mr Samson asserts that for the past seven to eight years he has had 100% care of [Child 1]; and that [Child 1] has spent approximately two weeks of overnight care with her mother during that period.

Miss Berger’s evidence

1. Miss Berger provided documentary evidence that she had attended doctors’ appointments with [Child 1], she was a contact for her school and an ambulance had been called to her home when [Child 1] was experiencing health problems. She also provided a reconstructed timeline of nights when [Child 1] had stayed with her from September 2018, text messages to Mr Samson and statements from family members and friends.

2. Ms [B], on behalf of Miss Berger, submitted that the parties have largely followed the court orders, with some modifications and flexibility as [Child 1] has grown older. She explained that [Child 1] is now 14 years old and has been diagnosed with [several conditions]. She is hyperactive and has behavioural issues. [Child 1]’s mental health has been adversely affected by a [incident] which occurred in September 2017. She uses illegal drugs, consumes alcohol and is frequently rebellious, impulsive and difficult to control, both at home and at school. She attends  [a] special [school]. Her attendance is poor, she does not enjoy school and she is only permitted to attend school in the mornings. She will often leave school without notice or call her mother to collect her. She may decide to go with friends to her father’s house, stay with her mother or even go to bed at her mother’s house and then demand to leave in the middle of the night to meet friends or be driven to her father’s house. She frequently takes off when challenged, both from home and school.

3. Miss Berger believes that Mr Samson’s decision to report a care change is directly connected to her decision to report an incident to the police in December 2018 when [Child 1] assaulted her. Although an apprehended violence order was made in December and extended in late March 2019 the order did not prevent [Child 1] from spending time with her mother and they resumed their former pattern of care based on the court order.

4. Ms [B] requested the tribunal to consider the very unusual circumstances that apply in Miss Berger’s case. She submitted that this is not a situation where [Child 1] spends nights at the home of her parents according to the day of the week. Due to her behaviour she may set off to school from the home of one parent, leave school early, go to the other parent’s home, take off after midnight and only return in time to go to school.

Mr Samson’s evidence

1. Mr Samson relied on the following evidence from family members:

   ·       Statutory Declaration sworn by his wife, [Ms Samson], in which she stated that [Child 1] lives with her father 100% of the time and has been doing so for the past seven or eight years. She does not sleep at her mother’s house.

   ·       Statutory Declaration sworn by [a counsellor] from [Named Centre] who stated that Mr Samson and [Child 1] reported to him that she lives with her father and that her contact with her mother involved outings rather than structured regular residence.

   ·       Statement from [Ms A] Mr Samson’s sister, who stated that [Child 1] had lived with her father for at least the last seven to eight years and does not reside with her mother and “absolutely never has”. On rare occasions she may go on an outing with her mother.

   ·       Statement from [Child 1]’s cousin, who stated that [Child 1] has lived with her father for the past seven to eight years.

   ·       Statement from [Ms B] Mr Samson’s sister, who stated that [Child 1] only sees her mother occasionally during the day on outings and has been residing with her father for seven years.

   ·       Statement from  [Mr] Samson’s brother, who stated that [Child 1] has been living with her father for more than seven years and that she does not reside with her mother and has never done so.

2. In the hearing Mr Samson stated that he had 100% care of [Child 1] for the past seven to eight years. He stated that [Child 1] had slept at her mother’s place perhaps four to five times over that period and, on at least three to four of those occasions, it was because he took her there and remained there with her. He stated that he paid child support over the past seven to eight years to “keep the peace” and to ensure that his [child] could remain safely living with him.

3. When asked why he did not seek to change the court order Mr Samson explained that approximately two years ago, around the time of Miss Berger’s mother’s death, he applied to the Family Court to change the order but because he wanted to show his support for Miss Berger at that time, he agreed with her solicitor to attempt to resolve the problem without court intervention.

4. When asked how many hours [Child 1] spent with her mother during the week Mr Samson stated that she spent about one hour with her every second day and two to three hours on an outing once a week. He acknowledged that [Child 1] spent time with her mother on holidays during the school holidays, but not necessarily every school holidays.

5. Later in the hearing Mr Samson stated that until about three to four months ago Miss Berger was collecting [Child 1] from school “pretty regularly”, at least three days a week and taking her for lunch afterwards.

6. Mr Samson emailed Child Support on 9 April 2019 with the following statement:

   Why I believe this (sic) incorrect is although we haven’t followed court orders since 6/12/18 Ms Berger gave a statement to the police that [Child 1] assaulted her and [Child 1] has been charged with assault there is an avo in place and we are still ongoing with juvenile court with the next court appearance in may [2019] since [Child 1] was charged she has been 100% my care except for two days that [Child 1] went away with Ms Berger.

7. Mr Samson sent an email to Child Support in similar terms on 5 April 2019. When questioned about these statements, which indicated that the order had been followed until 6 December 2018, Mr Samson stated that when he was stressed he doesn’t “write things like they should be”.

The tribunal’s findings

1. After carefully considering the evidence from both parties the tribunal found that the evidence presented by Mr Samson was inconsistent, unreliable and not credible.

2. The tribunal gave no weight to the evidence of the counsellor and the family members. The counsellor swore the statutory declaration on information provided by Mr Samson and [Child 1] and so the evidence is neither independent nor reliable. The statements from the family members are almost identical in their terms and their evidence that [Child 1] has never resided with her mother was contradicted during the hearing when Mr Samson acknowledged that [Child 1] spent time with her mother on holidays during the school holidays. His evidence changed during the course of the hearing from stating that Miss Berger only saw [Child 1] every second day for an hour to acknowledging that she collected [Child 1] from school at least three consecutive days a week and then took her to lunch.

3. Mr Samson’s evidence that he applied for a change in the court orders around two years ago was sharply contradicted by a solicitor’s letter dated 1 May 2017 to Miss Berger, the applicant in those proceedings, which indicated that a hearing had been set down for [June] 2017 in relation to a Notice of Risk when Mr Samson had failed to return [Child 1] to Miss Berger’s care. There is no evidence that Mr Samson made any application for a change of the court orders for [Child 1], contrary to the evidence he gave under oath at the hearing.

4. Mr Samson advised Child Support on two occasions that he and Miss Berger had ceased following the court order from [December] 2018. His reason for making those statements – that is, he had written the emails incorrectly ­– was not credible.

5. The tribunal was unable to draw any inferences about care from the photographs provided by Mr Samson. Some of the text messages indicated that Miss Berger had overnight care of [Child 1].

6. Mr Samson’s statement that he continued to pay child support for seven to eight years when he asserted that he had 100% care of [Child 1] during that time is not only incredible but also nonsensical.

7. In conclusion, the tribunal gave no weight to any of Mr Samson’s evidence that he had 100% care of [Child 1].

8. The tribunal did not rely on the statements provided by Miss Berger’s family members, friends and neighbours. Those statements provided limited information as to how they were aware of the care that Miss Berger provided and at best, could only be relied on to indicate that Miss Berger was involved in her [child]’s care.

9. Although a large amount of evidence has been provided by both parties there is very limited conclusive evidence of the nights of care that [Child 1] spends with both parents. This is well explained by Ms [B], who has indicated that [Child 1]’s behavioural and other problems have caused her to lead a rather chaotic lifestyle which does not allow for her to stay at each parent’s place on the nights specified in the court order. Her risk-taking behaviour is confirmed by a [psychologist] at [Named] Hospital in a report dated 12 August 2019; the diagnosis of attention deficit hyperactivity disorder is supported by a social work report dated 29 March 2017 from [Named] Service; the diagnosis of [the child’s other conditions] is confirmed by a discharge summary from [Named] Hospital dated 30 October 2018; and her attendance at a school for children with [certain] problems is confirmed by her 2018 student report from [school].

10. However there was sufficient evidence for the tribunal to find that the court order has generally been followed, albeit with a degree of flexibility that is common for older children seeking to make their own decisions about care. That evidence included:

    ·The discharge summary dated 30 October 2018 from [Named] Hospital. On that occasion [Child 1] had been admitted to hospital with mental health problems. [Child 1] provided a social history to the doctor which included her statement that she lives with her mother and father under a shared care arrangement but prefers living with her father.

    ·Mr Samson’s emails to Child Support in April 2019 in which he acknowledged that the court orders had been followed until 6 December 2018 when Miss Berger applied for an apprehended violence order against [Child 1].

    ·Miss Berger’s evidence that the apprehended violence orders did not prevent [Child 1] staying with her and that the pattern of care resumed soon after the orders had been made.

    ·Miss Berger’s reconstructed timeline of nights on which [Child 1] stayed with her, which indicates a care percentage consistent with the court order.

11. The discharge summary is persuasive because the evidence was not given in relation to the dispute between the parties.

12. Mr Samson has provided evidence to Child Support that the court orders were followed until the apprehended violence orders were sought on two occasions. Miss Berger’s evidence of the timeline was sufficiently detailed to make it a persuasive document and the tribunal readily accepted her evidence that the pattern of care resumed after the orders were made, which is consistent with [Child 1]’s behavioural problems and her lifestyle.

13. The tribunal concludes that the parents were having care of [Child 1] according to the pattern of care set out in the Family Court order, and that pattern of care equates to Miss Berger having 54% care of [Child 1] and Mr Samson having 46% care of [Child 1].

14. This means the existing percentage of care determinations for Miss Berger and Mr Samson in relation to the child [Child 1] should not be revoked.

DECISION

The decision under review is set aside and a new decision substituted that there was no change to the existing percentages of care for the child [Child 1].