Confidential and Child Support Registrar Anor THE OTHER PARTY

[2014] AATA 874

[2014] AATA 874  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/0024
Re	Confidential
APPLICANT
And	Child Support Registrar
RESPONDENT
And	Anor
THE OTHER PARTY

DECISION

Tribunal	Ms S Taglieri, Member
Date	25 November 2014
Place	Hobart

The application is allowed, and the matter is remitted to the Respondent to give effect to the determinations made according to paragraph 20 of the Reasons for Decision.

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Ms S Taglieri, Member
It is noted that publication of this decision is approved by the Administrative Appeals Tribunal pursuant to s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth.)

CATCHWORDS

Child Support; pattern of care; whether revocation of percentage of care correct; actual percentage of care determination applicable for teenager living away from parent.

LEGISLATION

Child Support (Assessment) Act 1989, Sections 50 & 54H

CASES

Polec & Stalker & Anor [2011] FCMA fam 959

P v Child Support Registrar [2013] FCA 1312

Drake v Minister for Immigration Ethnic Affairs (No.2) [1979] AATA 179

SECONDARY MATERIALS

Child Support Guide

REASONS FOR DECISION

Ms S Taglieri, Member

INTRODUCTION

1. The Applicant is the father of the child R (born 23.4.1996), and the Other Party is her mother. Prior to early 2013, there was an established pattern of care for R, whereby the Other Party had 100% of R’s care.[1]  The Applicant had 0% care of R and was assessed to pay child support according to these percentages of care.

   [1] Determination made pursuant to section 50 of the Child Support (Assessment) Act 1989

2. On 25 February 2013, the Applicant contacted the Respondent’s offices and advised that R had moved to live with her uncle at Mandurah and was no longer in the Other Party’s care. The date of the move was identified as 6 February 2013.

3. The Respondent invited the Other Party to provide evidence that she retained 100% care of R on 7 March 2013. Extensions of time/follow ups for provision of the evidence were given on 7 April 2013, 10 April 2013 and 15 April 2013. No evidence was received from the Other Party and on 22 May 2013, the Respondent made a determination revoking the prior 100% determination that was in her favour.[2]

   [2] Pursuant to section 54H of the Child Support (Assessment) Act 1989

4. The Other Party disputed the determination of the Respondent and applied for a review to the Social Security Appeals Tribunal (SSAT), who decided that R had not left the Other Party’s care and that the Other Party was entitled to a determination of 100% percentage of care for R. The Applicant applied to this Tribunal for review of the Decision of the SSAT.

5. This application raises two central issues. First, whether the pre-existing established pattern of care for R changed in or about 6 February 2013, such that the Other Party was not likely to have actual care of 100% in the following 12 month period? Determination of this question in the affirmative would mean that the Respondent was correct in revoking the prior care determination. Secondly, if correct, what percentage of care determination was required for the Other Party in the relevant 12 month period?[3]

   [3] Pursuant to section 50 of the Child Support (Assessment) Act 1989

   WAS THERE A CHANGE IN THE PRE-EXISTING PATTERN OF CARE?

6. The uncontroversial evidence was that in early 2013, R commenced attending John Tonkin College (“College”) which was located in Mandurah, some 1.5 hours from the Other Party’s home and where R had been living.  This alone does not establish a change in the pre-existing pattern of care for R.  There was conflicting evidence about whether for the purpose of attending the College, R moved into her uncle’s residence at Mandurah or continued to live with her mother and travel to Mandurah each day she attended College.

   The Applicant’s mother and the Applicant’s sister both gave evidence about conversation with R and Facebook entries made by R, which were to the effect that she was living at her uncle’s home at Mandurah.  This is hearsay evidence, but as the Tribunal is not bound by rules of evidence, it is entitled to take it into account. Further, I am satisfied that it is likely R was living at Mandurah, not her mother’s home during the vast bulk of the 12 month period from 6 February 2013 due to the contents of the Summonsed documents produced by the College[4], which gave R’s address as Mandurah and also the Facebook page[5] entry in evidence.  I found the Applicant’s mother and the Applicant’s sister to be straight forward and honest witnesses. Clearly they did not have a good relationship with the Other Party but they were open and frank about that. They presented as reliable witnesses. I do not accept what the Other Party asserts, namely that they in effect would fabricate evidence about what R told them to suit the Applicant.

   [4] Exhibit A2

   [5] Referred to in evidence of the Applicant’s mother and the Applicant’s sister

7. The Other Party did not appear at the hearing when it was conducted on 1 October 2014, despite advising the Registry the day prior that she would attend by video-link from the Perth Registry of the Tribunal.  I was concerned that she be given a proper opportunity to present her evidence and that she not avoid answering questions that were relevant to the issues that had to be determined by the Tribunal. As such, she was summonsed to give evidence at the adjourned hearing on 30 October 2014.

8. The Other Party’s evidence on 30 October 2014 was that R lived with her throughout the time she attended the College and travelled to and from each day she was required to be present.  This evidence was consistent with what she had told the SSAT and what she had consistently told officers of the Respondent.[6]  I do not accept her evidence for the following reasons:

   (i)Despite claiming that her mother was not capable of caring for R due to age and health, she also asserted that her mother at times drove R between Mandurah and Perth or collected her at the train station.[7]

   (ii)She asserted that she and R had together decided that R would attend the College and she had assisted in the completion of the enrolment, putting herself as the parent responsible.  However, the College records clearly show that the Other Party did not have any part in completing the enrolment and the guardian/parent responsible is identified as R’s uncle. The Other Party is only identified as a 3^rd emergency contact, which conveys that she was the last contact priority in the event of emergency. This being consistent with being the least accessible and least able to act in such a situation.

   (iii)Most tellingly, when cross-examined about why she was not on the College enrolment forms as parent or responsible person, she answered “because I was in Perth and she (referring to R) was in Mandurah”.

   (iv)There was conflicting evidence from the Other Party about the nature of R’s relationship with her uncle.

   [6] See records of Respondent at T11

   [7] T11 at page 139

9. It is also relevant to my rejection of the Other Party’s evidence that about where R lived, that she does not appear to have produced any documents evidencing care or financial expenditure on R’s behalf or for her benefit, throughout the entire period since the Applicant asserted a change in care. The best the Other Party did was to produce statements of her mother and her brother that were put before the SSAT.  I was not provided with a copy of those as evidence at the hearing, but the content of them seems limited as is apparent from what is recorded in the Reasons for Determination of the SSAT at paragraph 22.[8]  Notably the contents of the two statements were not subject to scrutiny of any kind as R’s grandmother and uncle did not give evidence before the SSAT. It is not apparent if the statements were sworn or unsworn. 

   [8] T2 at page 10

10. The Other Party’s claim that R continued to live with her is uncorroborated by any reliable evidence and is contradicted by other evidence to the contrary, that I prefer.  I am satisfied that during the vast bulk of the relevant 12 months, R probably did not live with the Other Party. This finding does not necessarily mean that the Other Party did not have any care of R, but is sufficient to warrant a finding that there was a change in care requiring a revocation of the pre-existing care determination.  The determination of 22 May 2013 to revoke the 100% care determination in favour of the Other Party was correct.

11. This does not dispose of the application and it necessary to consider and determine the second issue. Namely, what new percentage of care determination for the Other Party ought to be made from 6 February 2013.[9] 

    [9] As required pursuant to section 50 of the Child Support (Assessment) Act 1989

    ACTUAL PERCENTAGE OF CARE AFTER 6 FEBRUARY 2013?

12. The crux of the evidence relied upon by the Applicant from his mother, sister, adult son and records from the College, is that the majority of R’s actual care was to be provided for by her uncle and to a lesser extent her grandmother. That she was accommodated at the uncle’s home and provided with food, clothing, education, support and other requirements by her uncle.

13. The evidence of the Applicant’s mother and sister were largely based on conversations with R late in 2012 or early 2013[10]. As already found, I accept their evidence as a truthful account of what R told them.

    [10] Statements made, T6 and T7 and oral evidence at hearing

14. The Applicant also called his adult son to give evidence at the hearing. The adult son had lived in Mandurah at the uncle’s home for a period prior to the time R moved in also. His evidence, which I accept, was that he lived in the same house during the approximate period January 2013 and March 2013, although there was a short period during this time that he stayed with a mate. The adult son’s evidence was that R remained living with their uncle until the end of the College year and that he knew this from his own observations in early 2013 and later conversations with R after he moved out of the uncle’s home.

    The adult son’s evidence was that:

    ·his uncle and Nan were the main ones who supported R, providing food and amenities;

    ·that R had no income of her own and that R would have told him if she did have;

    ·that he had seen his uncle give R money;

    ·that at times when he was at his mother’s on weekends, R would visit and stay the weekend, but return to Mandurah for the week.

    ·that his mother always had morning commitments with her younger children which made it impossible for her to provide for R to get to Mandurah daily.

    ·that he was unaware whether his mother gave money to his uncle to provide for R.

15. The preponderance of evidence is that R mainly lived in Mandurah at her uncle’s home and that being so, the day to day actual care and supervision of her was unlikely to be provided by the Other Party. It is relevant that at the time R was 16 years of age and turned 17 on 23 April 2013. That being so, the nature of care required to be provided to her by a parent was vastly different to care of a young child. In many respects R was able to provide for her own care. However, provision for her financially, meeting the cost of food, accommodation, school books, travel expenses and heath needs, was necessarily something she did not do for herself, as the uncontroversial evidence is that she did not have her own income.

16. In relation to who paid for R’s needs identified above, I am left to resolve a conflict in evidence, between the adult son and the evidence given by the Other Party. I have no direct objective evidence from the Other Party about what she paid for R’s benefit. I have no evidence about whether the Other Party gave a sum of money to her brother, to cover R’s needs. I have the adult son’s evidence that he saw his uncle give R money and that he also provided accommodation and food. Clearly, the uncle also provided other support/supervision also, as the College records demonstrate that he was part of the enrolment process and served as guardian for that purpose. He also received correspondence about non-attendance issues.

17. Because I have found the Other Party’s evidence less than convincing, I am not satisfied that she solely paid for R’s financial and other needs as she claims.  If she had indeed made payment to her brother to cover R’s expenses and needs, it would have been a simple exercise for her to have produced documents showing bank transfer(s) to him or a statement from him that he received payments from her for that purpose. The Other Party maintained that she paid the expenses directly, but I do not accept that evidence because I found her evidence contradictory and unreliable.  For example, she told the SSAT that “R does not really get on with her uncle”[11], but gave oral evidence at the hearing on 30 October 2014, that R had a very special and close relationship with her uncle. 

    [11] Paragraph h) of T2 at page 9 of T documents

18. I have come to the conclusion that R’s actual care was provided by R herself, her uncle and Nan and also by the Other Party.  My assessment of all the evidence is that R’s actual care, considering the principles identified in Polec & Stalker & Anor[12] and in the Child Support Guide[13], was provided as follows:

    (a)Accommodation, clothing, food, education, some supervision provided by R’s uncle;

    (b)Emotional support provided by various family members, including the Other Party, R’s uncle, brother and Nan;

    (c)R appears to have made her own arrangements to live with her uncle and be partially supported by him giving accommodation and food. The Other Party’s evidence was that R lived with her, but I don’t accept it. The Other Party probably acquiesced to the arrangement.

    (d)Because I accept the evidence of the adult son and have found R was living at her uncle’s home in Mandurah for a vast part of the relevant period, the cost of meeting R’s daily needs were probably shared between the Other Party, her brother and her mother.

    (e)Given her age, R clearly was able to meet her own personal needs and was forthright in her desire to study at the College. This clearly indicates that she was providing for her own needs to a not insignificant extent.

    (f)After completing College towards the end of 2013, R returned to live in the Other Party’s home.

    (g)R was not financially independent, and therefore must have been supported by others financially. I conclude that those persons were the Other Party, R’s uncle and her Nan.

    [12] [2011] FMCA fam 959 at paragraph 56; approved in P v Child Support Registrar [2013] FCA 1312

    [13] Which is capable of consideration given the authority of Drake v Minister for Immigration & Ethnic Affairs (no.2) [1979] AATA 179

19. In view of the above findings, I determine that the percentage of care for the Other Party in the 12 months commencing 6 February 2013 is 45%.

    CONCLUSION

20. The application is allowed. The decision made on 22 May 2013 by the Respondent to revoke the pre-existing 100% care determination in the Other Party’s favour, was correct. The actual percentage of care determination for the Other Party for the 12 month period commencing 6 February 2013 is 45%.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri, Member

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Administrative Assistant

Dated   25 November 2014

Date(s) of hearing	1 October 2014 and 30 October 2014
Applicant	In person
Solicitors for the Respondent	Mr Brian Sparkes, Program Litigation and Review Branch
The Other Party	In person