Dawes and Montevue (Child support)

[2018] AATA 4897

Dawes and Montevue (Child support) [2018] AATA 4897 (13 November 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/BC015046

APPLICANT:  Mr Dawes

OTHER PARTIES:  Child Support Registrar

Ms Montevue

TRIBUNAL:Member J Thomson

DECISION DATE:  13 November 2018

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Dawes had 0% care and Ms Montevue had 0% care of [Child 1] from 20 May 2018.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care for the carer parent – existing percentage of care determination revoked and a new determination made - 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. Mr Dawes and Ms Montevue are the parents of [Child 1] (born 2000). Prior to Mr Dawes’ notification of a change in care with respect to [Child 1] on 24 May 2018, the care percentages being assessed by the Department of Human Services – Child Support (the Department) were 100% to Ms Montevue and 0% to Mr Dawes.

2. On 24 May 2018, Mr Dawes notified the Department of a change in care with respect to [Child 1], and on 19 June 2018, the Department made a decision to reflect the care percentages of the parents with respect to [Child 1] as 0% to each parent with effect from 20 May 2018.

3. In June 2018, Ms Montevue objected to the Department’s decision, and on 5 September 2018, a Departmental objections officer allowed Ms Montevue’s objection, set aside the Department’s decision of 19 June 2018, and, in substitution, decided that Mr Dawes’ notification of 24 May 2018 should be refused, and the original care percentages of 100% to Ms Montevue and 0% to Mr Dawes should continue with effect from 7 December 2015.

4. Mr Dawes now seeks review of the objections officer’s decision.

5. The Tribunal heard the matter on 13 November 2018. Mr Dawes attended the hearing via conference telephone and gave affirmed evidence. Ms Montevue was not available for the hearing when the Tribunal attempted to contact her on the mobile telephone number she provided to the Tribunal, despite having been notified of the time and date for the hearing by letter sent to her last known address provided to the Tribunal on 19 October 2018.

6. The Tribunal deferred the hearing of the matter for a period of 15 minutes while the Tribunal registry attempted to contact Ms Montevue. When no response was forthcoming, the Tribunal decided to proceed with the hearing in Ms Montevue’s absence. Later in the day, Ms Montevue contacted the Tribunal registry to advise that she had received the Tribunal’s letter of 19 October advising her of the time and date of the hearing, and that she had changed her contact mobile telephone number, but not advised the Tribunal of her new contact number.

7. At hearing, the Tribunal had before it documents provided by the Department, documents provided by Mr Dawes and documents provided by Ms Montevue. These documents were admitted into evidence and marked Exhibits 1, A and B respectively. Mr Dawes had copies of these documents with him at hearing.

ISSUES

1. The statutory provisions relevant to this review are found in the Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies, relevantly, if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 applies, relevantly, if the parent “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Both sections reflect the idea that the Department makes point-in-time care decisions on the basis of what has happened up until the change in care is considered and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate and when such a divergences occurs, a parent can notify the Department and a new care determination can be made. However, the legislative test at first instance and on review remains the same: what had happened until the date of the notification and what is likely to happen thereafter?

2. The issues which arise in this case are:

   ·       The pattern of the parents’ care of [Child 1] up to 20 May 2018, and the pattern or likely pattern of care each parent was to have thereafter.

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence of Mr Dawes given at hearing, and the evidence before the Tribunal in Exhibits 1, A and B.

2. The child support case with respect to [Child 1] ends on [a date in] November 2018, as [Child 1] turns 18 on [the following day].

3. Mr Dawes gave evidence at hearing that he became aware that [Child 1] was no longer living with Ms Montevue when he received an Instagram message from [Child 1] on 20 May 2018 in which she advised she was living at “Nana’s”, her maternal grandmother, [Ms A] , at an address in [Town 1] (see Exhibit 1, pages 36 and 37).

4. Mr Dawes said he was able to identify the person depicted in the Instagram picture as his daughter, [Child 1], and her double bed and other items of personal furniture in the background of the Instagram exhibits.

5. Mr Dawes also gave evidence that he was aware Ms Montevue had moved from her [Town 2] address, approximately 400 metres from Mr Dawes’ [Town 2] address, to live with her current partner at [Town 3], approximately 40km north west of [Town 2] in or about May 2018. This was at or about the same time he became aware of [Child 1’s] move to [Ms A’s]  home in [Town 1].

6. Mr Dawes said in evidence that he was aware [Child 1] had enrolled in a [vocational] course at the [Town 2] TAFE in February 2018, as she had asked him to pay the $[amount] TAFE fee for that course. He said he declined to do so because the Department advised him that as he was paying child support to Ms Montevue for [Child 1], he was not required to contribute to the costs of [Child 1’s] TAFE course.  He said he had paid child support payments of $1,550, $998 and $643 to Ms Montevue between March 2018 and May 2018, and was not in arrears with his child support obligations.

7. He said he was aware [Child 1] had been working for a local [business owner] [Ms B], at [her]  [business] at [Town 1] for approximately a month before she secured a [vocational] apprenticeship with [Ms B] in June 2018 on a wage of approximately $400 per week.

8. Mr Dawes said he was aware [Child 1] had applied for a learner’s permit in anticipation of obtaining her driver’s licence at the time she moved to her grandmother’s house in [Town 1], but did not have a driver’s licence, nor did she have a motor vehicle, and was therefore dependent on others to drive her to and from her workplace at [Ms B’s] [business] in [Town 1]. He said he believed [Child 1’s] decision to move in with her grandmother was because her mother, Ms Montevue had decided to move from her home in [Town 2] to [Town 3], 40km north west of [Town 2], and [Child 1] needed to remain in [Town 2] to complete her [vocational] apprenticeship at [Ms B’s business], and her [vocational] course at the [Town 2] TAFE.

9. Upon becoming aware of [Child 1’s] move to her grandmother’s home in [Town 1] on 20 May 2018, Mr Dawes said he notified the Department of a change in care on 24 May 2018, as appears from the Department’s file note at page 26 of Exhibit 1, advising that, from 20 May 2018: neither he nor Ms Montevue had care of [Child 1]; and she was living with her grandmother in [Town 1] and working in a local [business] in [Town 2].

10. Mr Dawes said that following his notification of the change in care for [Child 1], he experienced difficulty in receiving communications from the Department. He attributed this to the Department recording his notification that neither parent had care of [Child 1], and that the child support case for [Child 1] had ceased, as a consequence of which, his MyGov account with the Department was closed. It was not until he contacted the Department on 5 September 2018 that he became aware that Ms Montevue had successfully objected to the Department’s decision on 19 June 2018 to record neither parent as having care of [Child 1], that the decision had been set aside, and the original care percentages restored.

11. He said he had not received any of the Department’s letters notifying him of Ms Montevue’s objection to the Department’s 19 June 2018 care decision, or its requests for further information from him as part of the objection process, and consequently, he was not able to provide a response to the evidence Ms Montevue submitted to the Department’s objections officer as part of the objections process.

12. He gave evidence that in September 2018, he became aware that [Child 1] had been living with her boyfriend, [Mr C], at his parents’ home in [Town 2] since June 2018. He contacted [Mr C’s] parents, [Mr & Ms D], and arranged to meet with them at their home in [Town 2], where [Ms D] agreed to provide a statement confirming [Child 1] had been residing at their home rent free since June 2018, on average, five to six nights per week, and on some occasions, four nights per week, and that they were providing food and transport for [Child 1] to and from her workplace during the periods she was residing with them. A copy of [Ms D’s] statement was before the Tribunal at page 115 of Exhibit 1 and page A9 of Exhibit A.

13. Mr Dawes gave evidence that in June 2018, he sent a text message to [Ms A]  offering to contribute funds to the cost of her caring for [Child 1], but received no response.

14. He also gave evidence that [Child 1] obtained her driver’s licence approximately two weeks prior to the Tribunal hearing. He said she has also purchased a motor vehicle from savings from her income as an apprentice [occupation]. Mr Dawes said he recently gave [Child 1] $500 towards the registration fees for her motor vehicle.   

15. Although Ms Montevue was not available to give evidence via conference telephone at the Tribunal hearing on 13 November 2018, she did provide evidence in the form of the documentation contained in Exhibit B.

16. The Tribunal has considered that evidence, noting in particular her submissions set out at page B1 of Exhibit B, in which she asserts [Child 1] resides with her at her partner’s shed home at [Town 3].

17. The Tribunal also notes Ms Montevue acknowledges the adjustments she asserts [Child 1’s] move to [Town 3] has occasioned regarding her apprenticeship, her friends and her TAFE [vocational] course, all of which are centred in [Town 2].

18. Relevantly, Ms Montevue’s submissions reflect [Child 1’s] intentions, as an adolescent approaching her 18^th birthday, to obtain her driver’s licence, a motor vehicle of her own and move into her own flat, which, Ms Montevue noted, [Child 1] had already identified, presumably in [Town 2], where [Child 1] works and attends TAFE, and has her friends, indicative of [Child 1’s] intention to live independently of her parents.

19. Ms Montevue acknowledged in her submissions that [Child 1] stays at her boyfriend, [Mr C’s] parents’ house, and at her grandmother, [Ms A’s]  house, both of which are located in [Town 2].         

20. Ms Montevue has also provided additional documents attached to her submissions in her email to the objections officer dated 15 August 2018. These include a copy of [Child 1’s] [vocational] Apprenticeship Training [documentation] (Exhibit 1, Page 60) requiring [Child 1] to commit to 38 hours’ employment per week and class room training commencing 4 June 2018 and ending 2 June 2021, copies of driver experience log book extracts covering various periods from January 2018, snapshots, which Mr Dawes identified as depicting [Child 1] driving a motor vehicle and in her employer’s [business] in [Town 2], and a postal padded bag addressed to [Child 1] at [Town 3], [Town 2].

21. The Tribunal does not consider that any of this material amounts to evidence that Ms Montevue had care of [Child 1] from 20 May 2018. The driver’s log book extracts are difficult to decipher, and do not appear to make reference to [Child 1], nor are they evidence of where she is residing on the dates referred to therein.

22. The attachment to Ms Montevue’s email to the Department dated 16 August 2018 at pages 70 and 71 of Exhibit 1 appears to reflect that [Child 1] has secured funding from the Australian Government Department of Education and Training for her [vocational] apprenticeship course, and is not in need of parental support in that regard.     

23. Mr Dawes gave evidence that [Child 1’s] work roster requires her to work Tuesday to Saturday in [Ms B’s business], which suggests she would need to live in [Town 2] to fulfil her commitments to both her employer and her TAFE course.

24. Mr Dawes also gave evidence that [Child 1] spends occasional weekends at his parents’ [Town 4] residence.

25. As noted in the legislation summary above, the Tribunal is required to make a point-in-time determination as to the pattern of care the parents were having with respect to [Child 1] up until the change in care notified by Mr Dawes on 24 May 2018 when he advised the Department that [Child 1] was living with her grandmother, [Ms A] , from 20 May 2018, and the pattern or likely pattern of care the parents were to have thereafter.

26. The Tribunal finds that the evidence, on balance, is that [Child 1] ceased living with her mother, Ms Montevue at her [Town 2] residence when Ms Montevue moved to [Town 3] to reside with her partner in May 2018, and from 20 May 2018 has resided with her grandmother, [Ms A] , at her address in [Town 2] for various periods of time, and from mid-June 2018 until at least 11 September 2018 she has resided predominantly with her boyfriend, [Mr C] at his parents’ [Town 2] residence. Whilst she may have spent some time at Ms Montevue’s [Town 3] address, she has not done so on a permanent or consistent basis such as would give rise to a pattern of care.

27. The Tribunal also finds that the evidence, on balance, is that since June 2018, [Child 1] has been in employment, in receipt of an income of approximately $400 per week, and living independently.

28. Accordingly, the Tribunal finds that neither parent has had care of [Child 1] from 20 May 2018.

29. The Tribunal therefore intends setting aside the decision under review, and in substitution decides that Mr Dawes had 0% and Ms Montevue had 0% care of [Child 1] from 20 May 2018.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Dawes had 0% care and Ms Montevue had 0% care of [Child 1] from 20 May 2018.