Castaneda and Child Support Registrar (Child support)

[2020] AATA 901

Castaneda and Child Support Registrar (Child support) [2020] AATA 901 (20 February 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC017780

APPLICANT:  Ms Castaneda

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member A Schiwy

DECISION DATE:  20 February 2020

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that a terminating event did not occur on 15 March 2019.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – whether a terminating event happened in relation to the child – no terminating event – 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. Ms Castaneda and Mr A are the parents of [Child 1] and this application is about whether the child support case should have been terminated from 15 March 2019.

2. [Child 1] is 17 years old and the child support case commenced many years ago.  Care of [Child 1] has changed over the years and the Department of Human Services (‘Child Support’) had determined he was in Mr A’s care up until 26 February 2019; and then he was in Ms Castaneda’s care.  ([Mr A] lives in [one state] and Ms Castaneda lives in [another].)

3. On 17 June 2019 Mr A contacted Child Support and told them that [Child 1] was living with his de facto girlfriend (an adult) from 15 March 2019.  Child Support contacted Ms Castaneda and she said [Child 1] was still with her and stayed at home four or five nights per week.

4. On 3 August 2019 Child Support decided that neither parent had care of [Child 1] since 15 March 2019.  The case was terminated from that date. 

5. Ms Castaneda objected to this decision on 29 August 2019 and on 1 November 2019, a Child Support objections officer decided to disallow the objection.

6. Ms Castaneda applied to the tribunal on 6 November 2019 for a review of the decision of the objections officer.

7. The tribunal wrote to Mr A on 15 November 2019 inviting him to be an added party however there was no response from Mr A.

8. A hearing was held on 20 February 2020.  Ms Castaneda spoke to the tribunal via teleconference and gave evidence on affirmation.  

9. In considering this matter the tribunal took into account the oral evidence of Ms Castaneda and Mr A and the relevant documentation provided by the Child Support Registrar (numbered 1 to 286).  Copies of the numbered documents were provided to all parties. 

ISSUES

10.The law relevant to this review is contained in the Child Support (Assessment) Act 1989 (‘the Act’).

1. Subsection 12(2AA) of the Act says that a child support terminating event happens when neither parent is an eligible carer for a child and there are no non-parent carers entitled to be paid child support in respect of that child. Subsection 7B(1) of the Act says that a person is an eligible carer if the person has at least shared care of a child. Paragraph 12(1)(b) of the Act states that a child support terminating event happens if the child becomes a member of a couple. Section 74 of the Act provides that if child support is payable and there is a child support terminating event, the Child Support Registrar must immediately take such action as is necessary to take account of the event.

12.In this case the issue to consider is whether or not a terminating event has occurred.

CONSIDERATION

Evidence contained in the Child Support papers

13.[Mr A] contacted Child Support on 8 April 2019 and stated that [Child 1] was not in Ms Castaneda’s care but he did not want to submit a ‘change in care’ application at that stage as he could not provide proof.  He asked if the case would end when [Child 1] turned 18 years old ([in] May 2020) and was advised that as [Child 1] was not at school, the case would end.

14.[Mr A] contacted Child Support on 17 June 2019 stating that [Child 1] was in a de facto relationship with [Ms B] who is [adult age]; he had moved out of his mother’s house.  He provided a letter signed by [Ms B] that stated that [Child 1] had been living with her since 15 March 2019 with no financial support from his mother and that [Child 1] was unable to receive Centrelink payments as his father earns too much.

15.Child Support contacted Ms Castaneda on 17 June 2019 and said [Child 1] was at home 4-5 nights per week.  He has a girlfriend and is a little off the rails but still at home.  She was advised to obtain evidence to support her claim.

16.On 19 June 2019 Mr A rang Child Support to say that [Child 1] did not spend 4-5 nights per week with Ms Castaneda; he was staying at a different address.  He was aware of the change in care because [Child 1] told him over the telephone.  He said [Child 1] told him he did not want to live with Ms Castaneda as she and her sister are affected by drugs a lot of the time.

17.On 8 August 2019 Ms Castaneda contacted Child Support and said that [Child 1] had been living with her since February 2019 and that she has evidence of this.  She lodged an objection dated 29 August 2019 and stated that up until four weeks ago [Child 1] had been in her full-time care since 26 February 2019.

18.On 12 September 2019 Child Support contacted Mr A about the objection.  He said [Child 1] left Ms Castaneda’s care months ago and started living with his [Relative A].  He said [Child 1] left [his state] in March 2019 and spent two weeks only with Ms Castaneda.  He did not want to live with her due to her lifestyle.  He said Centrelink contacted him recently to know about his situation (it would appear [Child 1] applied for an independent rate of youth allowance).  He told Centrelink that he wanted [Child 1] to live with him but he was a [specified occupation] and not home a lot.  He lives in [one state] and [Child 1] wanted to live in [the other].  He said Ms Castaneda was a drug user and in and out of jail.  He then said [Child 1] could not live with Ms Castaneda and started living with his [Relative A] in Melbourne and had been there since March 2019.  [Child 1] asks Mr A for money.

19.On 31 October 2019 Ms Castaneda provided a text message (sender and receiver not noted but purportedly from Mr A’s partner to [Ms B]).  It is dated 29 May 2019 and provides the exact wording of the statement [Ms B] used in her statement to Centrelink.    

Evidence provided at the hearing

20.Ms Castaneda stated that:

·[Child 1] was living with his father for about two years but they were not getting on and he flew home to [her state].

·Soon after arriving he started seeing [Ms B].  She did not approve given the age difference and spoke to [Ms B] about the situation. 

·She and [Ms B] did not get on as a result and she believes [Ms B] assisted [Mr A] by supplying a statement (worded by [Mr A]’s partner) to Centrelink.  She believes [Ms B] was all ‘buddy buddy’ with the partner.

·[Ms B] was on parenting payment single and Ms Castaneda threatened to show the statement to Centrelink and [Ms B] begged her not to.

·If [Child 1] did not come home she would get her mother to drive her over to [Ms B’s] residence and ‘drag him home’.  Often [Ms B] would lie to her, saying that [Child 1] was not there.  She would ring the police and they would come over and ask to see [Child 1] and then [Child 1] would come home.  She said she would ring ‘000’ and had evidence of many such calls.  She was at the police station weekly.

·[Child 1] would end up staying at his girlfriend’s house about two nights per week.

·She continued to provide financial support to [Child 1] including buying him a [tool], medications, food and lodgings and paying for specialist medical appointments.

·She and [Child 1] had a falling out about his relationship with [Ms B] and he moved out and into his [Relative A’s] residence.

·She accidentally came into possession of the text message to [Ms B] from [Mr A]’s partner.

Discussion of evidence

21.The tribunal did not find the evidence of either parent, or [Ms B], credible.

22.[Mr A] told Centrelink that [Child 1] was living with [Ms B] and then said that [Child 1] moved to his [Relative A’s] house in March 2019; a direct contradiction.  It also contradicts [Ms B’s] statement. 

23.Ms Castaneda’s evidence that she was in weekly contact with the police, and ringing the emergency number does not seem credible.  [Child 1] was 16 years old (and turned 17 in May 2019) at the time.

24.After considering all of the evidence the tribunal decided that it was more likely than not that:

·[Child 1] commenced a relationship with [Ms B] from around 15 March 2019 (three weeks after he returned to [his mother’s state]).

·[Child 1] often stayed with [Ms B] but Ms Castaneda did not approve of the relationship.

·[Child 1’s] home base was with Ms Castaneda and she provided financial support to [Child 1] and she was responsible for [Child 1].

·On or around 1 August 2019 [Child 1] moved out of Ms Castaneda’s residence and went to live with his [Relative A] in Melbourne.  He applied for Centrelink benefits at this stage.

25.The tribunal therefore decided that a terminating event did not occur on 15 March 2019.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that a terminating event did not occur on 15 March 2019.