Confidential and Child Support Registrar Confidential OTHER PARTY
[2014] AATA 865
•21 November 2014
[2014] AATA 865
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/2561
Re
Confidential
APPLICANT
And
Child Support Registrar
RESPONDENT
And
Confidential
OTHER PARTY
DECISION
Tribunal Senior Member J F Toohey
Date 21 November 2014 Place Sydney The decision under review is set aside and the matter remitted to the respondent to calculate the child support payable from 1 August 2012 in accordance with this decision.
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Senior Member J F Toohey
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 – SHARED CARE – whether decision of Registrar should be revoked – conflicting evidence of parents – weight of the evidence favours mother’s claims –decision under review set aside and remitted to the respondent to calculate child support payable in accordance with this decision
Legislation
Child Support (Assessment) Act 1989
Child Support (Registrations and Collection) Act 1988
REASONS FOR DECISION
Senior Member J F Toohey
Background
This matter concerns child support payable in respect of a child, now aged 15, whose parents separated in 2010.
On 22 September 2010, an order was made in the Federal Magistrates Court that the child’s parents were to have equal shared responsibility for their daughter; she was to live with the mother, and spend time with the father for three hours on alternate Wednesday afternoons during school term, and for half the school holidays. Based on this order, the child’s mother had 89 per cent care and the father 11 per cent, and the child support payable by the father was calculated accordingly.
At some point around August 2012, the arrangement changed and the child spent each second Wednesday night during term time with the father. On 1 August 2012, the Child Support Registrar (the Registrar) made a care decision that, from 1 August 2012, the mother had 84 per cent care and the father 16 per cent. The child support payable by the father was calculated accordingly.
On 8 October 2012, the mother contacted the Registrar to say the child was no longer spending alternate Wednesday nights with her father and the arrangement had reverted to that ordered by the Court. The Registrar was not satisfied this was so, and decided that the determination made on 1 August 2012, that care was shared 84 per cent and 16 per cent by the mother and father respectively, should remain in place. The mother’s objection to this decision was disallowed by the Registrar.
In April 2014, the Social Security Appeals Tribunal (SSAT) agreed with the Registrar that care had been shared 84 per cent and 16 per cent by the mother and father respectively as of 1 August 2012.
The mother seeks review of the SSAT’s decision.
The relevant legislation
Determinations about the assessment and collection of child support are made in accordance with the Child Support (Assessment) Act 1989 and the Child Support (Registrations and Collection) Act 1988.
Details of the relevant provisions in the legislation are set out in the Secretary’s Statement of Facts and Contentions given to the Tribunal and to both parties in these proceedings. I will not repeat them in any detail here. I am satisfied they are correctly set out in the Secretary’s document and neither party takes issue with it.
In summary, where there is a pattern of care, the Registrar must make a determination based on the actual care provided by the parents during a care period. Actual care may be, but is not necessarily, calculated based on the number of nights that the child was, or is likely to be, in the care of the person during the care period. In some cases, a determination by reference to the number of hours of care over a care period may be more appropriate. If a party objects to a determination by the Registrar, the Registrar must decide whether to revoke the determination. Where that occurs, the Registrar may make a new determination.
The evidence
As the documents before the Tribunal show, and as the mother and father acknowledge, their dispute about the change in the care arrangement has been long and bitter. The SSAT was not persuaded that either was a credible witness and had to rely on documentary evidence which was itself limited and conflicting.
The Tribunal is not in a much better position in these proceedings. However, for the reasons that follow, I find that the weight of the evidence favours the mother’s contention that there was a short term change in the arrangement which ended by 8 October 2012, after which it reverted to that ordered by the Court.
The mother says the only change in the arrangement was that the child stayed overnight with the father on three consecutive fortnightly Wednesdays around August and September 2012; up until then she would see her father at her paternal grandmother’s house for three hours on Wednesday afternoons as ordered by the Court. The mother says the father was living some distance away and she felt sorry for him having to travel to see the child at his mother’s house. She agreed the child could stay overnight at the paternal grandmother’s house once, and then agreed to requests by the father a fortnight later, and the fortnight after that. At that point, she says, she decided the arrangement was too disruptive for the child, including because she had been late to school one morning.
The father gave evidence by telephone. He could not recall when the child started staying overnight on alternate Wednesdays. In that respect, he was no different from the mother. However, he also could not recall how long the arrangement continued. He had to be pressed repeatedly before he said it continued until “probably late last year”; “probably around about December”.
Documents in evidence show that, on 8 November 2012, the father spoke by telephone with the Registrar’s office. A record of the conversation shows that he said it had been agreed the child would stay overnight in his care every fortnight “although … he has missed 2 fortnight care” because the mother had not allowed the child to stay overnight.
On 14 January 2013, the father spoke by telephone with the Registrar’s office following the objection lodged by the mother. A record of the conversation on file shows that he said it had been agreed that he “would have Wednesday night” and “this has been occurring since August 2012 and the arrangement will be continuing, as this is something [the child] wants to do”. He explained “that there would be two occasions (which were close to Christmas) where he did not [have the child overnight]”.
In an undated letter received by the Registrar on 21 November 2012, the child’s paternal grandmother stated that, from 18 August 2012, the child had been staying overnight every second Wednesday and would continue to do so. The SSAT gave no weight to this letter, “not because of a lack of credibility but rather due to the lack of details regarding dates and times”. For the same reasons, the SSAT gave no weight to a letter from the child’s maternal grandmother which supported the mother’s claim that the arrangement had been discontinued.
The maternal grandmother gave evidence before the Tribunal. She appeared to give her evidence honestly. She lives next door to the mother and says the arrangement was (and until recently still was) that she or the maternal grandfather would drop the child at the paternal grandmother’s house on alternate Wednesdays during term and pick her up three hours later and take her home. As best as she can recall, the child stayed overnight on two or three, possibly four, occasions but no more. She could not recall exactly when this was but it was around the time in question. She could not remember exactly what happened in 2013 but says “absolutely” either she or her husband picked up the child from the paternal grandmother’s house on alternate Wednesdays and she recalled an altercation she had with the father when she dropped off the child, or picked her up, which was “vivid” in her mind.
The mother has produced copies of several series of text messages between her and the child, and her and the father, during 2012, 2013 and 2014. The father says, and I accept, that they are selective in that they show some messages only. However, in my view, they do tend to support the mother’s version of events.
In a text message on 9 August 2012, the father says he wants “to know about the Wednesday stay over”. The mother replies “Hey she can stay every third Wednesday”. In response to a further text message from him, she writes “Ok once this month sleep over and every fortnight dinner like it is now”. He replies that he wants “more time” with the child.
In a text message on 16 August 2012, the mother states she is “not impressed” that the child “was late for school today” and “I don’t think these 2 off sleep overs are benefiting her in any which way. Let’s stick to the court orders to avoid any confusions or arguments ok”. The father replies to the effect that he will “take it to court” if he has to because he wants more time with the child; further that he has “plenty of proof” the child stayed with him “on the 18th”.
On 8 October 2012, there is an exchange of messages, some of them abusive, in the course of which the mother sends a message saying “just stick to the court orders from here on in”.
Conclusion
On the evidence before me, I am not satisfied that the arrangement for the child to stay overnight every second Wednesday continued with any regularity after 8 October 2012. To the extent that she stayed overnight on any further occasions, they were not sufficient to change the pattern of care.
The contemporaneous text messages indicate that in early August 2012 the mother and father had not come to agreement about Wednesday nights. The message from the mother on 16 August 2012 asking that they “stick to the court orders” shows that the arrangement became a matter of dispute shortly after it started. The reference to “2 off sleepovers” and her further text message on 8 October 2012 suggests the arrangement was not settled and was still disputed.
It is not clear from the respondent’s notes of conversations with the father in November 2012 and January 2013 to the effect that he had “missed” a couple of Wednesdays referred to the same Wednesdays or not. They suggest that, by November 2012 he had missed a “couple of Wednesdays” and by January 2013 a further two nights. Either way, they indicate that the arrangement was not settled and had probably come unstuck by some time in October 2012.
I accept the evidence of the maternal grandmother that she or her husband dropped the child off and picked her up from the paternal grandmother’s house in 2013. I prefer her evidence to the father’s evidence that the arrangement for alternate Wednesday nights continued “probably” to the end of 2013.
Making the best I can of the unsatisfactory evidence before the tribunal, I find that the weight of the evidence favours the conclusion that the child stayed overnight with the father on several alternate Wednesdays from early August 2012 to early October 2012, during which time the percentage of care was 84 per cent and 16 per cent for the mother and father respectively. I find that, from 8 October 2012, the arrangement reverted to what it had been previously when the percentage of care was 89 per cent and 11 per cent respectively.
I am satisfied that the determination of the Registrar should be revoked and a new determination made in accordance with these findings. The decision under review is set aside and the matter remitted to the respondent to calculate the child support payable from 1 August 2012 in accordance with this decision.
28. I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Ms J F Toohey, Senior Member.
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Associate
Dated 21 November 2014
Date(s) of hearing 17 November 2014 Representative for the Applicant Self-represented Representative for the Respondent Mr Steven Davidson, Government Lawyer Representative for the Other Party Self-represented
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