Dickman and Child Support Registrar (Child support)

[2021] AATA 4237

Dickman and Child Support Registrar (Child support) [2021] AATA 4237 (31 August 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/MC021722

APPLICANT:  Mr Dickman

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Presiding Member J Nalpantidis

Member A Ducrou

DECISION DATE:  31 August 2021

DIRECTION TO ALTER REASONS FOR DECISION:

Pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, the following alteration is made to the written statement of reasons for the decision:

The covering (first) page of the decision incorrectly lists the Review Number as 2015/MC021722, which is a typographical error. 

The correction should be made, with the correct Review Number being 2021/MC021722.

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER  2015/MC021722

APPLICANT  Mr Dickman

OTHER PARTIES  Child Support Registrar

TRIBUNAL  Presiding Member J Nalpantidis

Member A Ducrou

DECISION DATE  31 August 2021

DECISION

The tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – decision under review affirmed

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. This review is about the percentages of care for Mr Dickman and [Ms A] that apply in relation to the administrative assessment of child support for the child, [Child 1], born October 2006.  A child support case in respect of the child was registered from 4 July 2018. Under the administrative assessment Mr Dickman was liable to pay child support to [Ms A] for the child at all times relevant to this review.

2. The Department of Human Services – Child Support, now Services Australia (the Agency) had recorded [Ms A] as having 100% of the child’s care and Mr Dickman as having 0% of the child’s care. The percentages of care were applied to the administrative assessment of child support from 4 July 2018.

3. On 4 February 2021 Mr Dickman lodged a change of care arrangement in relation to the child’s care such that he had 100% care from 26 January 2021.  On 4 February 2021 the Agency spoke to [Ms A] who advised that due to medical issues with her father, the child was sent to stay with friends in [City 1].  

4. On 5 March 2021 the Agency refused Mr Dickman’s claim that the care arrangements for [Child 1] had changed for child support purposes, such that she was in Mr Dickman’s care 100% of the time from 26 January 2021.

5. On 12 March 2021 Mr Dickman objected to the Agency’s decision.

6. On 13 May 2021 an Agency objections officer disallowed the objection.

7. On 11 June 2021 Mr Dickman applied to this tribunal for review of the objection decision on 12 March 2021. The tribunal wrote to [Ms A] notifying her of the application for review and invited her, as a person whose interests may be affected by the decision under review, to apply to be made a party to the review. On 1 July 2021 [Ms A] advised a Tribunal Officer that she did not wish to be made a party to the review. The tribunal did not receive an application from [Ms A] to be made a party to the review.

1. The tribunal conducted a hearing on 27 August 2021. Mr Dickman participated at the hearing by telephone via Microsoft Teams audio. [Ms A] did not participate in the hearing. Mr Dickman gave oral evidence on affirmation and made oral submissions at the hearing. The Registrar did not participate in the hearing. The tribunal had before it documents provided by the Registrar numbered 1 to 160.

2. Subsequent to the hearing, on 30 August 2021, Mr Dickman provided further documents (numbered A1 to A8). Numbered copies of all the documents were provided to the Agency.

3. The tribunal considered the further information provided by Mr Dickman and made its decision on 31 August 2021.

ISSUES

1. The issues for the tribunal to determine are:

   a)What were the actual care arrangements in relation to the care of the child in the relevant care period?

   b)Should a new determination of a percentage of care for the child be made? If so, what is the percentage of care and from when should it apply?

CONSIDERATION

1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act1988 (the Registration and Collection Act).

2. Percentage of care determinations are made under section 49 and/or section 50 of the Assessment Act. Section 49 of the Assessment Act provides authority to make a determination in circumstances where a parent has no care of the child. Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child during the relevant care period, the Registrar must determine that person’s percentage of care for the child during the care period. The percentage determined must be the percentage that corresponds with the actual care of the child that the Registrar is satisfied the responsible person has had, or is likely to have, during the relevant care period.

3. The pattern can be established either according to a “care arrangement” (such as court orders) or the actual care that is taking place. Depending on whether a pattern has been established or not, the tribunal can then proceed to determine the percentage of care applying the appropriate law (sections 49 and 50 of the Assessment Act). Prior to making a new percentage of care determination under these provisions, it is necessary to determine whether the existing care percentage determination can be revoked.

4. In this case, there were no court orders or written and signed parenting plans regarding the care of the child.  Therefore, the parents’ percentages of care must be based on the pattern of actual care which was taking place.

5. The Assessment Act provides that the care percentage must be determined for a “care period” which is effectively defined as “…such period…as the Registrar considers to be appropriate having regard to all of the circumstances”. Usually (but not necessarily) the care period will be a 12 month period starting from the date the care of the child changed and reflecting the actual care that a person has, or is likely to have, during the care period. In this case the tribunal is satisfied that a 12-month care period is appropriate. The tribunal notes that although the tribunal has decided that a 12-month care period is appropriate, this will continue to apply until a further change of care is notified (which may be before or after a 12 month period has elapsed).

6. Section 54A of the Assessment Act then provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period.

7. For the purpose of determining whether a person “has had, or is likely to have, a pattern of care for the child”[1] the tribunal takes into account evidence of the care the person has had, or the actual care, from the date of the asserted change in care up to the time of the original determination by the Registrar and evidence of the pattern of care the person is, or was, likely to have at that point in time.

   [1] Paragraph 50(1)(a) of the Assessment Act

Mr Dickman’s evidence and contentions

1. Mr Dickman submitted he has had 100% care of the child since 26 January 2021, and he provided supporting evidence including a number of statutory declarations, from [Mr B], who is a neighbour and retired police officer, his sister [Ms C], and his son [Mr D]. 

2. A Statutory Declaration provided by [Ms C], Mr Dickman’s sister, dated 7 June 2021, stated: “To the best of my knowledge my niece [Child 1] has lived in the full-time care of her father [Mr Dickman] at ……... [City 1].”  The Agency material includes an earlier letter from [Ms C] dated 30 April 2021, which stated:

   I am the sister of [Mr Dickman] and Aunty of [Child 1].

   Since January 2021 has been living with my brother [Mr Dickman].

   I know that she has been living with [Mr Dickman] because I have been visiting her and [Mr Dickman] at his home and also taking her to and from school on school days.

3. [Mr D], Mr Dickman’s son, provided a statutory declaration dated 7 June 2021 stating: “I live at ………….  I advise that from late January 2021, my sister [Child 1] has also been living at that address in the care of my/our father [Mr Dickman].”

4. [Mr B] provided a Statutory Declaration dated 7 June 2021, stating: “I advise that from January 20^th, 2021 [Child 1] has resided at ………... [City 1] in the care of her father – [Mr Dickman].”

5. The Agency material includes a letter from [Ms E] dated 30 April 2021 which confirms [Child 1] does not live with her and that, “… most nights [Child 1] has stayed with myself at …… Blvd has been 4 nights sporadically, when [Child 1] and my daughter want to spend time together.  I can confirm [Child 1] has been living with her father [Mr Dickman] since January 2021.”

6. Mr Dickman told the tribunal that [Child 1] continues to live in [City 1] despite efforts by [Ms A] to prevent this.  Mr Dickman dismissed the contention by [Ms A] that her friend [Ms F], who leases a property owned by [Ms A], pays reduced rent to recognise her care for [Child 1].   Mr Dickman submitted there was no evidence, such as bank statements or other documentation to support a reduction in rent, and even if this was the case it was a matter between [Ms A] and her friend and not reflective of care arrangements for the child.

7. Mr Dickman submitted that Child Protection has been involved in the child’s case and this supports she has been living with him as he claims.  He referred to an intervention order contained in the material provided by the Agency.  He said the emails, text messages and the intervention order support his contention that [Child 1] has continued to be in his care, in [City 1].

8. Mr Dickman does not dispute that the pattern of care for the child prior to 26 January 2021, was as listed by the Agency, that is, he had 0% care of the child, and [Ms A] had 100% care.  Mr Dickman gave evidence [Child 1] contacted him in January 2021 to say she wanted to live with him in [City 1] and she also wanted to attend school in [City 1].  He said this is what the child wanted and he did not discuss or reach agreement with [Ms A] about the matter.  Mr Dickman gave evidence the child told him she had a big disagreement with [Ms A], and she decided to relocate to [City 1].  Mr Dickman gave evidence he did not discuss the matter with [Ms A].

9. Mr Dickman gave evidence he was working at TAFE in Melbourne for three days per week during school terms and was therefore staying in Melbourne for part of the week while undertaking this work.  While Mr Dickman was working and staying in Melbourne, the child stayed in [City 1] with his son, and his son’s girlfriend, and Mr Dickman’s sister .  With the COVID-19 lockdown, Mr Dickman is now in [City 1] full-time. 

10. Mr Dickman told the tribunal that he attempted to enrol the child into secondary school in [City 1] from late January 2021, but [Ms A] did not agree to this and this process delayed the child’s enrolment until late term 1 or early term 2. 

Other evidence

1. The file note in the Agency material dated 4 February 2021, about the details of care change states (unedited):

   Details of Care Change

   ===================

   Details around actual care that is occurring:

   PP advised child has moved to [City 1] a few weeks ago and is now living with him.

   PP advised [Child 1] and RP had a disagreement and RP put child on the bus and sent her to [City 1].

   PP advised that [Child 1] has friends in [City 1] which she has also being staying with (sleepovers to catch up with the friends she hasn’t seen for a while) however he has been giving the child money and supporting her, purchased her clothing, a phone etc.

   [Child 1] has requested to enrol in a school in [City 1] to remain living with him as she does not want to go back to Melbourne.

   Currently looking at enrolling the child at [School 1] as this is where her friends go.

   ….

   Discussed with respondent: Yes

   Details:

   PP advised that he has not had discussion with [Ms G] (third party carer) as [Child 1] has been the one communicating between both parties as they are not on speaking terms.

   Previous CO placing child is [Ms G’s] care 100% of the time, no new court orders made.

   PP advised that he originally tried to enrol [Child 1] at [School 2] however [Ms G] contacted them and sent all the C/O showing that the child is to live in Melbourne which created issues so he will be enrolling [Child 1] in a different school.

   Respondent likely to agree: No

   Details of likely disagreement:

   PP advised that RP is not likely to agree as RP is under the expectation that the child will be returning to her care eventually however [Child 1] has messaged [Ms G] to let her know she does not wish to return to the third parties care

   ….

   [Ms G] advised that she is currently looking after her father who is pallative with a few weeks to live and as [Ms G] has had some issues with [Child 1] recently she sent her to stay with her friend in [City 1] until her father passes which she will then be returning to [Ms G].

   [Ms G] advised that her friend is renting from [Ms G] and they have organised a reduced rent while [Child 1] is staying with her as her friend is looking after her.

   [Ms G] advised she messaged [Mr Dickman] on 20/01/2021 to let him know that [Child 1] was in [City 1] with her friend and suggested he spend some time with her, they organised for [Child 1] to stay with him on 23/01/2020 24/01/2020, police then removed [Child 1] from his care on the 25/01/2021 and returned the child to [Ms G’s] friend (police report was made).

   [Ms G] advised that she has court orders that were made in 2018 (can be found in correspondance) as the courts ruled it unsafe for [Child 1] to be in [Mr Dickman’s] care.

2. Further file notes dated 5 February 2021 refer to discussions with Mr Dickman and [Ms A] as follows:

   [Mr Dickman] advised [Child 1] is now in his care since 26/01/2021.

   He has allowed [Child 1] to stay at friends place in [City 1] to catch up as she has not seen them for a while.

   He advised that he has been providing financial support while she is at friends place.

   He said that they have an appointment for enrollment at [School 1].

   Advised INC would be managing pending care as other carer has disagreed.

   Tried to discuss what the other carer has provided but he said he does not want to know.

   He is just happy [Child 1] is in his care.

   Advised [Mr Dickman], we need evidence to support [Child 1] is in his care and he has provided financial support while child staying with friends since coming to [City 1].

   Advised any evidence from child [Child 1] cannot be consider.

   Advised evidence can be third party statement (over 18) who can attest to the care, enrolment details showing him as the contact person with his address and any other supporting evidence [Child 1] in his care since 26/01/2021.

   Advised he has 21 days to provide evidence (by 26/02/2021)

   Discussed getting letters online but he preferred surface.

   Advised he can upload evidence online or by email ‐ provided the webmaster email.

   Discussed FTB eligibility by lodging claim online.

   Advised he can also lodge care evidence via FAO if its better option for him.

   [Mr Dickman] advise he would attend FAO office to discuss eligibility

   Spoke to [Ms G] on mobile

   Advised calling to discuss care change for [Child 1]

   Advised bio dad claiming 100% care of [Child 1] since 26/01/2021.

   [Ms G] advised she organized [Child 1] to live with her friend ([Ms F]) while she is looking after her father who is in palliative.

   She advised that [Child 1] is 14 and has been in trouble who has been sneaking out at night to see a boy.

   She advised both kids has broken intervention order.

   She advised she cannot managed to watch over [Child 1] all the time while she is looking after her sick father.

   She organized [Child 1] to stay with her friend in [City 1] until her father passes.

   She advised her friend ([Ms F]) is renting from her and they agreed on reduced rent while [Child 1] is staying with her.

   She said [Ms F] has 4 kids of her own and only on CLK so wont be able to financially support [Child 1] ‐ so she does.

   She is aware Carmen has given [Child 1] some money but not to her friend [Ms F].

   She suggested bio dad to spend time with [Child 1] while she is at [City 1]. where [Child 1] supposed to stay with him on weekend 23‐24.

   Cust advised bio dad did not return [Child 1] to [Ms F] so she contacted police where [Child 1] was removed from his care on Monday 25/01/2021 and returned to child to [Ms G]'s friend.

   She advised [Child 1] is still in her friends care

   Customer advised they bio dad tried to enroll the child in [City 1] however she has contacted the school and notify them she is the legal guardian.

   She also advised that bio dad her sent her friend screenshot to write as a statement and that [Child 1] want to live with him.

   Advised [Ms G] that we need to determine who has physical care as bio dad claimed child is in his care and she claim child is still with her friend but she claimed she is still eligible carer.

   Advised customer evidence required as both carer claiming care of [Child 1].

   Discussed types of evidence she could provide in 21 days.

   Advised her best evidence would be written statement from her friend confirming their arrangement, suggested screenshot of their discussion as well about the arrangement, bank statement where the rent is being paid showing rent payment being made was reduced and any other evidence to support she is still eligible carer.

   Advised they both has 21 days to provide evidence.

   Advised reminder letter would be issued via FAO and evidence can be uploaded to CSA or FAO.

   Advised have received screens hot of text messages between herself and [Mr D] (older sibling)

   She advised [Mr D] still lives with his dad [Mr Dickman].

   Advised [Child 1] is 14 and pretty much can decide where she wants to live unless child services get involved due to safety concern.

   She understood.

3. The material provided by the Agency includes a Statutory Declaration by [Ms A] dated 10 February 2021 stating:

   1.    On the 20^th of January I sent a text message to [Mr Dickman] advising that his daughter, the child in question – [Child 1] was currently in [City 1] and if he would like to spend some time with her.  Mr Dickman responded and advised that [Child 1] could stay with him on Saturday and Sunday and to drop her off Saturday morning at 10 am.

   2.    [Child 1] was dropped off at Mr Dickman’ house at approximately 2:30 pm on Saturday the 23^rd January 2021.

   3.    On Monday the 25^th of January [Child 1] had not been returned as agreed and I had then sent a text message to Mr Dickman asking when he will be returning [Child 1].  It was at this point [Child 1] was sending messaged to a friend of mine asking to be picked up because she feels unsafe.

   4.    The police attended Mr Dickman’s property, [Address 1], [City 1] and removed [Child 1] from the premise due to her safety and welfare.  It was at approximately 6:30 pm [Child 1] was returned by the police into the care of my friend …...

   5.    [Child 1] has remained in the care of [Ms F] until this present date Wednesday 10^th February 2021.

4. The Agency material includes numerous texts between the parties and others, which support the finding that the parties did not agree to a change in care such that the child would be in Mr Dickman’s 100% care from 26 January 2021.  The Agency material includes an email by [Ms A] to [School 2] [City 1] dated 2 February 2021 stating it was brought to her attention that Mr Dickman is trying to enrol [Child 1] into [School 2].  [Ms A] stated the child was enrolled at school in Melbourne and that is where she is carrying out her education, and under no circumstances does she give consent to [Child 1] being enrolled to that school.

The tribunal’s consideration

1. Mr Dickman does not dispute that [Ms A] had 100% care of the child prior to 26 January 2018.  The particular objections decision before the tribunal in this review directs the tribunal’s attention to the percentage care of the child for Mr Dickman and [Ms A] that may be applied to the administrative assessment from 26 January 2021. 

2. The tribunal acknowledges that the Agency material shows based on notifications by [Ms A], new care percentage determinations were made such that from 11 February 2021 to 17 March 2021 the care percentage for the child was 28% for Mr Dickman and 72% for [Ms A].  From 18 March 2021 the care percentage for [Child 1] was 42% for Mr Dickman and 58% for [Ms A] Subsequently, on 3 June 2021 a determination was made that the care percentage of [Child 1] was 100% for Mr Dickman and 0% for [Ms A]. These subsequent determinations are separately reviewable determinations and are not before the tribunal and, therefore, not within the scope of this review.  The period relevant to the tribunal’s consideration in this review is confined to the period from 26 January 2021 to 10 February 2021. 

3. There is no dispute the child travelled to [City 1] on or around 26 January 2021 and it appears she stayed with her father, Mr Dickman.  However, the only issue which the tribunal must determine is what was the pattern of actual care from the date of the asserted change in care on 26 January 2021 and up to the time of the original determination by the delegate of the Registrar on 5 March 2021?

4. The issue for the tribunal is whether the pattern of care for the child changed such that Mr Dickman had 100% care of [Child 1].   Mr Dickman does not dispute that [Ms A] had 100% care of the child up to 25 January 2021, nor does he contend that there was an agreed change in care.  His contention is that the child entered his care, albeit without [Ms A]’s consent, on 26 January 2021 and he had 100% care of the child from that date.  It was Mr Dickman’s evidence that this was not an agreed change in the child’s care on the contrary the evidence shows that [Ms A] did not agree to a change in care.   

5. In relation to the pattern of care for the care period that commenced on 26 January 2021, on the available evidence, tribunal does not consider that it has sufficient evidence to overturn the decision which the Agency has made in relation to the pattern of care in relation to the child in this period. 

6. The tribunal therefore concludes that the evidence is insufficient to persuade the tribunal that the current decision of the Agency should be set aside. Hence the tribunal determines that the existing percentages of care for the child of 100% to [Ms A] and 0% to Mr Dickman continue to apply from 26 January 2021.

DECISION

The decision under review is affirmed.