BMSJ and Child Support Registrar (Child support second review)

[2021] AATA 1614

BMSJ and Child Support Registrar (Child support second review) [2021] AATA 1614 (1 June 2021)

Division:GENERAL DIVISION

File Number(s):      2020/4811

Re:BMSJ

APPLICANT

AndChild Support Registrar

RESPONDENT

AndTXJX

OTHER PARTY

DECISION

Tribunal:Member M Kennedy

Date:1 June 2021

Place:Adelaide

The Tribunal sets aside the decision under review and substitutes a decision allowing the objection so as to revoke the existing care percentage determination with effect from 30 September 2017, and to make a new care percentage determination of 0% in respect of both parents with effect from 1 October 2017.

...........................[Sgnd]...................................
Member M Kennedy

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.

Catchwords

CHILD SUPPORT – percentage of care – whether change in pattern of care - whether existing determination of care should be revoked under section 54G or 54F of the Child Support (Assessment) Act 1989 – consideration of actual ‘care change day’ - new care percentage determination made – decision under review set aside and substituted.

Legislation

Child Support (Assessment) Act 1989
Child Support (Registration and Collection) Act 1988

REASONS FOR DECISION

Member M Kennedy

1 June 2021

1. BMSJ (the father) and TXJX (the mother) are the parents of M, in respect of whom a child support assessment was in place.  Prior to the decision the subject of this review, child support was calculated on the basis that M was 100% in the mother’s care. On this basis, the father incurred a child support liability to the mother in respect of M.

2. Although the records are not entirely clear, on 16 July 2019 the father was contacted by the Department in relation to a complaint he had lodged online.  During discussions, the father reported that care was not taking place in accordance with the existing care determination, and M was living with a third party. The Department commenced its decision-making process in relation to a ‘care change’.  The record made by the Department on this occasion indicated that the proposed ‘care period start date’ was to be 15 October 2018.

3. The mother was contacted the same day and expressed her disagreement with the proposed care change, stating that M would stay in the care of the third party only on weekends and school holidays.  On 23 July 2019, the Department decided to reject the father’s request to revoke the existing care determination.

4. On 13 January 2020 the father again contacted the Department to agitate the matter of M’s care arrangements. The records before the Tribunal show that the Department dealt with this contact by commencing a new process for considering a care change rather than an objection process for its earlier decision.  The records indicate that the ‘date of event’ apparently nominated by the father was 1 September 2018.  The mother was contacted the same day and was recorded to have made remarks to the Departmental officer to the effect that ‘M was never at home and lived with [third parties]’.  The call between the Department and the mother was terminated by the mother. It is apparent from the record that the Department interpreted the information provided by the mother as agreement to the proposed care change.  The Department  decided  to record care for M as 0% for the mother and 0% for the father with the date of that event being 1 September 2018 and the date of notification being 13 January 2020.  The letter of notification subsequently provided to the parents of 13 January 2020 indicated that the Department had given effect to the care change from 1 September 2018.

5. The mother contacted the Department again the next day.  The record indicates that she made remarks to the effect that care was incorrect, and the Department treated this as an objection to the decision that had been made the previous day.

6. On objection, the objections officer decided that the evidence available established that M was no longer in the care of either parent from 26 August 2019.  In this regard, the objections officer observed that evidence provided by the parents conflicted and preferred instead to draw an inference based upon information obtained from M’s school as to M’s place of residence and the date M had commenced residing at that place.

7. The mother applied to the Tribunal in the Social Services and Child Support Division for review (AAT1). In that division, the Tribunal approached the decision under review as a decision pertaining to a ‘child support terminating event’ within the meaning of section 12(2AA) of the Child Support (Assessment) Act 1989 (the Assessment Act). The Tribunal identified the date from which neither parent had at least 35% care of M (and thus both were not ‘eligible carers’ within the meaning of section 7B of the Assessment Act) as being 13 January 2020, accepting the evidence of the mother over the evidence of the father.

8. The father applied for review of the decision of the Tribunal’s Social Services and Child Support Division on 12 August 2020 (AAT2).

   CONSIDERATION

   Legal Framework

9. The circumstances in which an existing care determination may be revoked are restricted to those set out in Division 4, Subdivision C of the Assessment Act.

10. Relevantly to the circumstances of this case, sections 54F and 54G of the Act provide for revocation of a determination of a percentage of care if (among other requirements) the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the person’s existing percentage of care, or a person was to have at least regular care of a child, but the person has had no care of the child.

11. The legislation contains provisions regulating the date of effect of the revocation of a care determination. Essentially and relevantly, where the Registrar is notified or otherwise becomes aware of a care change after 1 January 2019, and the effect of the care change is that the responsible person’s care of the child has reduced, the revocation will take effect for the child support assessment from the day before the care change day (being the day when care actually changed).

12. After revocation, the Registrar must make a new care percentage determination. If the Registrar is satisfied that a person is likely to have no pattern of care for a child, the determination must (relevantly) be nil: section 49 of the Act.

13. At the heart of this review however stands a factual determination to be made concerning the date M ceased to be in the care of the mother.

    Evidence

14. There is a large body of documentary evidence before the Tribunal consisting of third party records, bank statements, statements of third parties from which each party has asked earlier decision makers to draw inferences favourable to their positions and reach findings about M’s relationship with the mother and M’s living arrangements at varying points in time.

15. Unlike earlier decision makers who have considered this question, I was in the position of being able to receive oral evidence from M directly.  Subject to me forming a view that M was a witness of credit, I consider her evidence to be the best evidence upon which I might reach findings about M’s living and care arrangements.

16. As a result of legislative reform in 2015, it is now clear that I may take oral testimony from a child aged over 18 for the purpose of an AAT second review of a decision that relates to the child: section 98A of the Child Support (Registration and Collection) Act 1988.  That provision clearly prohibits oral testimony from children aged under 18, and by inference permits evidence from the child concerned after the child has reached adulthood.

17. At the time of the hearing, M was 18 years old.  I found her to be composed, clear in her evidence and aware of the gravity of giving sworn evidence to the Tribunal.  Although the mother submitted that I should not accept her evidence on matters critical to the review on the basis that their relationship had been difficult and had soured, I could identify no aspect of the manner or content of M’s evidence that could cogently justify giving it anything less than full weight.  I found M to be a witness of credit and I accept her evidence and find it to be determinative of the review.

18. M’s evidence in summary is that she moved out of her mother’s house in September 2017 to stay with her Aunt “BP” (the mother’s cousin).  M stated that she and her mother were not getting along.  She would still see her mother when her mother came to BP’s house, but M did not stay with her mother again after September 2017. M did not think that she returned to her mother’s house to share a meal (for example) at any stage.

19. Prior to moving out, she had a bedroom at her mother’s house.  When she moved out she took her personal belongings, including her bed and mattress. At BP’s house she shared a room  with her cousin, who was two years older than her.  M stayed at BP’s house until early 2020 when she moved in with her boyfriend “C”.

20. “C” also gave sworn evidence to the Tribunal. He adopted his written statement.  He confirmed that he and M had been dating since April 2019 and first met in March 2019.  When he would visit her at that time he would visit her at BP’s house. C said he went to M’s mother’s house on a few occasions to meet her mother, and at that time M would not be staying at her mother’s house.  I put to C information from a statement of BP to the effect that M was not staying there. C told me that he did not think this was true as M had told him she was living with BP and he would pick her up from BP’s house and drop her off there after work.

21. Returning to M’s evidence, I explored whether she received any financial assistance from her mother while living at BP’s house.  M recalled that for a while she did not hear from her mother, but ultimately did ask for a child support payment and received either $20 or $30.  She thought that may have been in 2019, two years after she had left.

22. As to any other form of support.  M could not recall if she had visited a doctor in 2017 or 2018.  M did recall that she was struggling with school at the time, but in dealing with the school she was not accompanied by any adult.

23. M worked at Hungry Jacks.  She would get to work by walking from BP’s house, and sometimes BP or her partner would drop her off .

24. M did not know if her mother was providing BP with money.  M said that she (M) started paying board to BP when she received youth allowance in 2020, before she moved to C’s house in June. I asked M if she had approached Centrelink earlier, but she said that BP and her partner said they would just help her out.

25. M categorically denied the version of events put forward by her mother to the effect that she would stay under her mother’s roof during weekdays and spend weekends at BP’s house.

26. I was unable to avoid raising the content of the purported letter from BP (T161) with M, as it directly contradicted her evidence.  In this regard, BP did not give evidence to the Tribunal.  There was some suggestion from BMSJ that the statement purporting to be from BP was not in fact from BP, in effect a fraud.  TXJX (the mother) denied the statement was a fraud, and another witness (TXJX’s close friend W, who is BP’s sister) told me that BP had found herself in a domestic violence situation and was in protective custody.  According to the mother, BP could not be contacted and that telephone number provided on her statement was W’s number for that reason. In any event, and regardless of the reason,  I am not satisfied that the statement or evidence from BP has been proved and place less weight upon it accordingly.

27. M became genuinely upset when discussing the statement purportedly from BP.  In this regard, BP’s statement had said that M only lived with her for a few days when M and her mother would argue, and that the mother would send BP money.   M said the content of the purported letter was not true, and could not speculate why BP would send a letter in to the Department that was not true.  M explained that when she left BP’s house, BP had wanted a lot of money from her and now BP was very nasty towards her and they have lost contact with each other.  They had previously been very close.

28. I have noted that to a limited extent some documentary evidence tends to corroborate M’s version of events.  In this regard, the objection officer relied on T16, a letter from M’s school of 26 August 2019 advising that M resided at BP’s address. I have found other documentary evidence, including social media extracts, to be inconclusive and not to have materially added to or detracted from the evidence given by M.

29. I have considered the evidence of the mother and her witnesses, W, and the mother’s mother “D”.  In this regard, D’s evidence was that she acted as the mother’s carer and was at the house regularly and observed M to be there and staying overnight.  D’s evidence cannot be reconciled with M’s evidence or C’s evidence.  Likewise, W’s evidence was also supportive of the mother’s version of events and could not be reconciled with the evidence of M or C.

30. As mentioned above, I was impressed by the clarity and conviction of M’s evidence, and have noticed that it is corroborated to a limited extent by documentary evidence from the school as to her place of residence, in a way that contradicts the evidence of the mother and her witnesses.

31. I prefer M’s evidence in every respect, and find that she ceased to live under her mother’s roof from September 2017 and did not again resume living under her mother’s roof.

32. I have turned my mind to whether the evidence might allow to me to find that M remained in her mother’s care despite not  living under the same roof due to the provision of financial or other forms of parental support.  The difficulty with this proposition however is that it contradicts the mother’s evidence and the evidence of her witnesses to the effect that M was actually living under her roof for the majority of the time; evidence I reject.

33. The documents before the Tribunal contain limited examples of the transfer of small amounts of funds from the mother to M.  This evidence falls well short of demonstrating that the mother continued to care for M after she ceased to live under the same roof.

34. The date in September 2017 when M left her mother’s home has not been identified with precision.  I am however satisfied that the mother did not provide any pattern of care for M after 1 October 2017.

    Application of the legislation

35. I now apply the legislation to this factual finding. I must consider whether section 54F or 54G of the Act apply so as to revoke the existing care determination. Section 54F does not apply if section 54G applies, and so I will first consider section 54G of the Assessment Act.

36. Section 54G applies where both parents had a care percentage determination made under section 50 of the Act, which will be the case where both parents have a ‘pattern of care’.  In this case, BMSJ had no pattern of care and had a care percentage determination of 0%, indicating that the care determination in respect of him was made under section 49 of the Act and not section 50.  Therefore section 54G of the Act does not apply.

37. Section 54F of the Act applies.  In this regard, section 54F provides for revocation of a determination of a percentage of care if (among other requirements):

    ·      the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the person’s existing percentage of care; and

    ·      the Registrar is satisfied that the person’s cost percentage for the child would change if the Registrar were to determine another percentage to be the person’s percentage of care for the child.  If a new percentage of care (under the applicable provisions) were to be determined, it would not be the same as the existing percentage of care.

38. I find that from 1 October 2017, the care that was actually taking place did not correspond with the mother’s existing percentage of care of 100%.  Furthermore, if I were to determine a new percentage of care (0% based on my findings), it would be substantially different to the existing percentage of care and change the cost percentage: section 55C of the Act provides that the cost percentage would also change from 100% to 0%.

39. I therefore must revoke the existing care percentage. 

40. As to the date of effect of the revocation of the existing care percentage, this turns on when the Registrar was notified or otherwise became aware that care was not taking place in accordance with the existing care percentage.  The documentary evidence available to me shows that the Registrar was notified for the first time on 16 July 2019.  As also noted above however, the Department did not accept that care had changed on that occasion, and did not deal with BMSJ’s subsequent contacts to restate that care had changed as an objection to the refusal to make a new care determination based upon the notification of 16 July 2019.  While this convolutes and complicates matters somewhat, I consider that as a matter of fact, the Registrar was notified of a change to the care arrangements on 16 July 2019, for the purpose of applying the date of effect provisions at subsection 54F(3) of the Act.

41. It follows therefore that in accordance with subparagraph 54(3)(b)(ii) of the Act, the date of effect of the revocation of the existing care determination is the day before the care change day: 30 September 2017.  In this regard, the provision would provide for a differential date of effect if BMSJ’s care had increased – but it did not.

42. Arguably, and in any event, the date of effect of the revocation of the care change determination is a largely academic issue in circumstances where inevitably the care change also appears to amount to a child support terminating event for the purposes of subsection 12(2AA) of the Act of subsection 12(2AA) of the Act.  In this regard, I note that section 74 of the Act provides that the Registrar must give effect to the happening of a child support terminating event.  To assist the Registrar in this regard, I confirm my finding of fact that the mother ceased to have any care from 1 October 2017.

43. I am to make a new care determination to take effect from the day after the revocation of the previous care determination.  It is to be relevantly made in accordance with section 49 of the Act where I am satisfied that the responsible person has no pattern of care of the child, and is to be 0%.  I make that determination.

    Other matters

44. I had invited written submissions from the Registrar, which were provided after the hearing, addressing a somewhat complex and technical matter relating to what the correct decision from a review Tribunal would be in circumstances where a substantially different care change day was found to the day that had been put forward by a parent in notifying the Registrar.  I was concerned to identify the limits of the Tribunal’s review jurisdiction in this regard and identify when any review decision imposing a substantially different ‘care change day’ might actually amount to a primary decision, where the correct decision on review would be to refuse to revoke the care change determination  in place at or about the time nominated by the notifying parent.

45. The submissions were of assistance, but I have ultimately decided in this case that the matter of concern to me has not arisen.  This is because I have found that the care change day predated the date first identified by the notifying parent.   I therefore draw no conclusion as to the legal construction put forward by the Registrar on this issue.

1. Finally, after the hearing, the mother provided further written submissions (albeit without leave).  I have considered those submissions but noted they raise other matters pertaining to the child support assessment that are not before me in this review.

   DECISION

2. I will set aside the decision of the Tribunal and substitute it with a decision reflecting my findings.

I certify that the preceding 47 (forty seven) paragraphs are a true copy of the reasons for the decision herein of Member Kennedy.

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Administrative Assistant Legal

Dated: 1 June 2021

Date of hearing:

5 February 2021

Representative for the Applicant:      

Self-represented

Representative for the Respondent:

Representative for the Other Party:

Sam Cummings, SPARKE HELMORE LAWYERS

Self-represented