Dant and Child Support Registrar (Child support)

[2018] AATA 4415

Dant and Child Support Registrar (Child support) [2018] AATA 4415 (8 October 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/BC014523

APPLICANT:  Mr Dant

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  8 October 2018

DECISION:

The decision under review is varied so that Mr Dant is recorded as providing 0% care and [Ms A] is recorded as providing 100% care to [Child 1], with effect from 22 December 2017.

CATCHWORDS
CHILD SUPPORT – Percentage of care – Pattern of care – Care withheld by one parent – Interim determination considered – Determination revoked and new determination made – Date of notification – Decision under review varied

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

1. Mr Dant and [Ms A] are the parents of [Child 1] who was born in 2006. A child support case was registered in 2006. More recently, the Department of Human Services – Child Support (“the CSA”) decided to record Mr Dant as providing 39% care and [Ms A] as providing 61% care to [Child 1] from 10 July 2017. Neither parent objected to that decision.

2. On 22 December 2017, [Ms A] informed the CSA that a change in care occurred on 5 September 2017, and that she started providing 100% care from that date. On 8 January 2018 the CSA notified each parent of the decision it had made, as it applied to that parent. For example, the letter to Mr Dant stated, in part:

   Our records now show you have:

   ·0% care of [Child 1] from 5 September 2017.

   Our records now show that your percentage of care changed from 5 September. The CSA can only give effect to this decision from 21 [sic] December 2017 for [Child 1] because we were not notified of the change within 28 days.

3. Mr Dant promptly objected to that decision. An objections officer disallowed his objection and provided detailed reasons for that decision. Mr Dant promptly sought further review by this Tribunal. [Ms A] was invited to apply to be made a party to the current proceedings, but she declined to make that application. I heard the matter on 8 October 2018. I spoke to Mr Dant by conference phone.

4. Notwithstanding the fact that nine months have passed since the CSA made its original decision, neither parent has provided particularly probative evidence on the central issue of whether the parents’ pattern of care of [Child 1] changed on 5 September 2017.

5. [Ms A] provided a copy of a letter that her solicitor wrote to Mr Dant on her behalf on 7 September 2017. It states, in part:

   We refer to previous correspondence.

   We further refer to events which occurred on 5^th September 2017 when you brought [Child 1] to our client’s workplace holding [Child 1] by the shirt collar and shoving him in our client’s direction by putting your hand on his back and pushing him. This was done in front of a number of witnesses.

   [Child 1] also informed one of those witnesses, who is a qualified social worker:

   [The letter particularises ten matters.]

   In the circumstances our client is quite properly concerned that [Child 1] is at substantial risk being in your care.

   In order to protect [Child 1] from you and / or self harm our client does not propose to return [Child 1] to your care.

   We await your further advices. 

6. [Ms A] provided a copy of her diary, although she redacted the majority of the entries. The diary does not include records of the parents’ care of [Child 1]. She provided other documentation, and most of it was not probative of the central issue, but some of it was relevant, and I will return to it shortly.

7. It is also worth noting that by not applying to be made a party to the proceedings, [Ms A] effectively elected to not give her evidence on oath, and to not make herself available to be questioned in respect of the purported change in care. I have consequently given her evidence significantly less weight than would have otherwise been the case if she had confirmed her evidence on oath at the hearing.

8. However, it does not automatically follow that Mr Dant’s application for review is successful. Mr Dant stated that there was no change in care from 5 September 2017. He stated a change in care occurred in December 2017. There were a number of unsatisfactory aspects to his evidence.

9. Mr Dant has not provided any evidence to corroborate his statement that he continued to provide care in the months following September 2017. For example, he did not purport to keep contemporaneous notes of the parents’ care of [Child 1] and he did not obtain any statements from family, friends or neighbours who might have witnessed him providing care.

10. Mr Dant stated that [Ms A] regularly provided false information to the CSA concerning purported changes in care. If that were true, it is surprising that Mr Dant did not view [Ms A’s] solicitor’s letter dated 7 September 2017 as a warning that she was likely to once again provide false evidence to the CSA (on Mr Dant’s account of events), and take steps to obtain evidence of his provision of care. Mr Dant acknowledged during the hearing that he received the letter dated 7 September 2017.

11. According to the CSA’s file notes, Mr Dant contacted the CSA on 15 February 2018 to object to the original decision and he informed the CSA that he had lodged a “contravention application order”. He said he would provide a copy of the application within two weeks. He has not done so.

12. At 10:52am on 16 February 2018 the CSA noted, in part:

    Paying parent Mr Dant called in and advised that both parents have reached agreement in relation to the level of care of child [Child 1].

    ...

    Mr Dant said Mum has told him that she will call DHS child support today 16^th of February 18 to sort out issue of care and to opt out of collection.

13. I referred Mr Dant to the CSA’s file note dated 16 February 2018. He stated, “Who’s ‘Mum’, I don’t know what that means, it’s so vague it’s not even funny.” He also claimed that he did not know anything about an agreement. I suggested that “Mum” was a reference to [Ms A]. Mr Dant continued with his criticism of the file note.

14. I referred Mr Dant to a text message that [Ms A] received from Mr Dant at 8:24am on 16 February 2018. Mr Dant did not dispute the authenticity of the text message. It stated (with minor typographical errors in the original):

    Just on a side note. I’ve spoken with child support yesterday to object to change of care of 100% that you have reported to them. They’ve asked me o send them my contravention of court order within 2 weeks. This is something I’ve nearly completed. If you are genuine about trying to make this work and that’s it’s not a money grab then I suggest you call them today and advise the it is 50/50 and that we have a private agreement that they are not part of. I’ll be forced to file the contravention order to the courts as part of my objection. I don’t want to go through that but I have no choice if your not genuine. Just let me know. I’m happy to work on care with [Child 1] behind the scenes.

15. In response to further questions, Mr Dant confirmed that he had not lodged an application in respect of a contravention of the Court Order. He gave various reasons as to why he did not lodge the application, but those reasons did not explain why he provided false information to the CSA.

16. On 22 February 2018 the CSA contacted [Ms A] and noted, in part:

    [Ms A] has only known about Mr Dant getting a contravention order after 16 February 2018. She doesn’t know when this commenced, or if he is actually getting one. [Ms A] advised that she has received text messages from Mr Dant since 16 February 2018 asking her to contact child support to change care to 50/50 (which is not correct) and change to a private collection, or to end case as parents have no FTB claims.

17. [Ms A] subsequently provided copies of those text messages.

18. I am required to make findings of fact on the balance of probabilities. Although [Ms A] has provided very little evidence to corroborate her statement that she commenced providing 100% care from 5 September 2017, the evidence as a whole suggests that Mr Dant is not a reliable witness. The fact that [Ms A] consulted her solicitor on 7 September 2017 and arranged for a letter to be sent to Mr Dant informing him that she intended to withhold care, and particularising her reasons for doing so, lends some weight to her subsequent statement to the CSA that there was a change in care from 5 September 2017. On balance, I consider [Ms A’s] evidence to be the more reliable. I find that [Ms A] commenced providing 100% care from 5 September 2017.

19. The relevant legislation was contained in the Child Support (Assessment) Act 1989 (“the Act”) as at the date the CSA made its original decision. There have been subsequent amendments to the Act.

20. Section 54G of the Act provided for the revocation of a previous care decision if certain requirements were satisfied including a requirement that the change in care was reported within a period that was reasonable in the circumstances. [Ms A] has not explained why she did not report the change in care promptly. I am not persuaded that that requirement is satisfied.

21. Section 54F of the Act also provided for the revocation of a previous care decision and the requirements of that section were clearly satisfied. Sections 49 and 50 provided for the recording of 0% care and 100% care respectively. Usually, if a change in care is reported more than 28 days after it occurred, the new care decision takes effect from when the change in care was reported: section 54B of the Act. The CSA concluded that [Ms A] reported the change in care on 21 December 2017 and decided that the decision to record Mr Dant as providing 0% care and [Ms A] as providing 100% care therefore took effect from that date. However, there is no evidence that [Ms A] (or Mr Dant reported the change in care on that date. The first record of the CSA being informed of the change in care is when [Ms A] contacted it on 22 December 2017. Subject to what follows, the care decision therefore has effect from 22 December 2017.

22. Section 51 of the Act provided that an “interim determination” could be made if certain requirements were satisfied. An interim determination reflects the care that should have been provided pursuant to a formal care arrangement, such as a Court Order, rather than the care that was actually being provided. A Court Order concerning the parents’ care of [Child 1] was made in 2015. However, section 51 was subject to section 53 of the Act, which relevantly provided that if the new care decision took effect more than 14 weeks after the change in care actually occurred, section 51 did not apply. The new care decision takes effect from 22 December 2017, which is more than 14 weeks after 5 September 2017. The 14-week period could be extended if there were special circumstances that existed in relation to the person with reduced care. Mr Dant’s circumstances did not constitute special circumstances for the purposes of section 53. I note that the Court Order had not been complied with since at least 10 July 2017. The CSA has not provided information about the parents’ pattern of care prior to that date.

23. For those reasons, the decision under review will be varied to reflect the fact that [Ms A] first notified the CSA on 22 December 2017, and not 21 December 2017, of the change in care that occurred on 5 September 2017.

DECISION

The decision under review is varied so that Mr Dant is recorded as providing 0% care and [Ms A] is recorded as providing 100% care to [Child 1], with effect from 22 December 2017.