DRRM and Child Support Registrar (Child support second review)

[2016] AATA 91

DRRM and Child Support Registrar (Child support second review) [2016] AATA 91 (19 February 2016)

Division

GENERAL DIVISION

File Numbers

2015/3758

2015/5003

Re

DRRM

APPLICANT

And

Child Support Registrar

RESPONDENT

And

HSRH

OTHER PARTY

DECISION

Tribunal	Dr Damien Cremean, Senior Member
Date	19 February 2016
Place	Melbourne

The Tribunal affirms the reviewable decisions.

......[sgd]...............................................................

Dr Damien Cremean
Senior Member

CHILD SUPPORT- Pattern of care — whether actual care different — decisions affirmed

Legislation

Child Support (Assessment) Act 1989(Cth), sections 50, 50(3) and 54A

Cases

Parent A and Child Support Registrar and Anor [2013] AATA 562

REASONS FOR DECISION

Dr Damien Cremean, Senior Member

19 February 2016

BACKGROUND

The Application seeks review of two decisions of the Social Services and Child Support Division of the Administrative Appeals Tribunal.

1. The first decision (2015/3758) is dated 2 July 2015 and affirms a decision dated 2 December 2014 of the Child Support Registrar (CSR) to reject a claim by the Applicant for a new care percentage decision in relation to Child A.

2. The second decision (2015/5003) is dated 4 September 2015 and affirms a decision dated 13 April 2015 of the CSR determining zero percent care in relation to Child A with effect from 31 January 2015.

3. DRRM (the Applicant) and HSRH (the Other Party) are the separated parents of Child A.

4. As of 20 March 2014 the Federal Circuit Court of Australia ordered by consent that Child A live with the Other Party; and that the other children of the couple, Child B (the twin of Child A) and Child C, live with the Applicant.

5. As at 19 August 2014 (the relevant date in proceeding 2015/3758), the Applicant was the parent liable to pay child support to the Other Party for Child A.  The Applicant’s care percentage was zero per cent and the Other Party’s was 100 per cent.

6. As at 13 January 2015 (the relevant date in proceeding 2015/5003), the same child support arrangement was in place.

7. In proceeding 2015/3758 the Applicant argues that Child A was no longer in the care of the Other Party from about 28 August 2015 (earlier stated to be 19 August 2015); with consequent effect on his liability for child care support.

8. In proceeding 2015/5003 the Applicant argues that Child A left the Other Party’s care from about 15 January 2015 (later stated to be 13 January 2015); also with consequent effect on his liability for child care support.

   ISSUES

9. The issue in proceeding 2015/3758 is whether Child A ceased to be in the Other Party’s care from 19 August 2014.

10. The issue in proceeding 2015/5003 is whether Child A left the Other Party’s care on 13 January 2015.

    LEGISLATION

11. Both issues raise pattern of care questions. Such questions are governed by section 50 of the Child Support (Assessment) Act1989 (Cth) (the Act).

12. Section 50 applies where the CSR is satisfied that a person has a pattern of care during a care period for a child in relation to whom an assessment is to be or has been made. In section 50(3) the Act provides:

    The percentage determined under subsection (2) must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period

    
    
    
    

13. By section 54A of the Act :

    Working out actual care and extent of care, of a child

    (1)The actual care of a child that a person has had ,or is likely to have, during a care period may be worked out based on the number of nights that the Registrar is satisfied that the child was, or is likely to be, in the care of the person during the care period.

    (2)The extent of care of a child that a person should have had, or is to have, under a care arrangement during a care period may be worked out based on the number of nights that the child should have been, or is to be, in the care of the person during the care period under the care arrangement.

    (3)For the purposes of this section, a child cannot be in the care of more than one person at the same time.

    (4)This section does not limit section 50, 51, 52 or 54.

14. There is helpful discussion of these provisions and the notion of a pattern of care in Parent A and Child Support Registrar and Anor [2013] AATA 562 at [33]. An important point to emerge from that discussion is that:

    ... the pattern looked for is not one characterised by precise conformation of detail, day by day, or by unbending regularity...

    and that

    ...some accommodation may be expected for vicissitudes of circumstance in the care of a child.  

    I regard this as particularly important in the case of a child given to running away from home.

    EVIDENCE

15. At the hearing the Applicant gave affirmed evidence in person to the Tribunal and the Other Party gave evidence by telephone. Both were self-represented. The CSR helpfully addressed the Tribunal on the provisions of the Act but made no submissions on the evidence. The Tribunal was provided with the documentation lodged by the Other Party, pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, (the T-documents) and these were received into evidence in both proceedings.

    Proceeding 2015/3758

16. The Applicant argues that Child A ceased to be in the Other Party’s care from 19 August 2014, relying on various items of information including police reports and hospital records.

17. In evidence the Applicant indicated that he was only concerned with certain dates, including: from 19 to 26 August; from 12 to 19 October 2014; 1 and 2 November 2014; from 11 to 13 November 2014; 25 November 2014; 2 December 2014; 22 and 23 December 2014; 28 and 29 December 2014.

18. The Other Party denies Child A ceased to be in her care from 19 August 2014 or on the various dates indicated by the Applicant. She does not dispute however the various Police Reports and Hospital Records showing absences of Child A.

19. The Applicant argued that during all of these dates Child A was away from the Other Party and had indeed left the Other Party.

20. It is true that on the various dates in question Child A is recorded as a missing person in a police report or as an admitted to hospital - usually following a police search when she had gone missing.

21. There are also extensive telephone records compiled by the Applicant or on his behalf indicating Child A was at various times (perhaps on as many as 36 nights) using her mobile telephone at locations away from the Other Party’s house where she had been living.

22. Further the Applicant has provided carefully prepared spreadsheets and other documents based on police and hospital records obtained under Freedom of Information (FOI).

23. In written submissions lodged by the Applicant there are numerous wild and unsubstantiated assertions that the Other Party and Child A’s psychologist made false statements.  I heard no evidence about these matters.  Therefore, I do not agree with him that the statements made by them in the matter have been disproven simply because he asserts this is so.    Nor do I take up his suggestion to secure a caution of the psychologist from her professional body for making (allegedly) false statements.

24. A change in a pattern of care requires more than merely an absence or even many absences as in this case.  I note the reference in Parent A and Child Support Registrar and Anor  that:

    ... some accommodation may be expected for vicissitudes of circumstances in the care of a child...

    I agree with this statement and I bear it in mind in giving reasons.

25. Absence of a child - or even many absences as in this case - could indicate any number of things including rebelliousness, distress, or some other malady and this could have nothing to do with the pattern of care.  The pattern of care itself may not change in actuality by referring to a child running away from home, even repeatedly.

26. In any event, on the occasions in question (or nearly all of them) Child A was discharged into the care of the Other Party.  From that point on, the Other Party looked after Child A until the next time.  This seems to me to be inconsistent with any change in actuality in the pattern of care.  It is true the telephone records seem to tell a different story.  However, it was pointed out to me by the Other Party, that although Child A was making telephone calls at night away from home, she was still residing with her at home except later on when she was a missing person, on the streets or in hospital. I accept the Other Party’s evidence on this.

27. It is suggested by the Applicant that the various absences of Child A indicate that she did not want to be in the Other Party’s care. Reference was made to a South Australia Police report that says Child A found the Other Party to be possessive and controlling. Presumably, this was referred to so as to give a reason why Child A was continually going missing.

28. There is, however, no statement from Child A in evidence before me to explain her conduct or to say whether the Other Party has at any point abandoned care of her or abandoned the pattern of care. No person representing her independently has said anything on her behalf. No formal arrangement effecting a revision of the pattern of care is in evidence either.  Nor does the Other Party offer to enter into any such arrangement.

29. I am not satisfied that I should find the pattern of care has changed in actuality  due to the absences of Child A because of her dislike (if so) of the Other Party being possessive or controlling.  The Other Party denied she was possessive or controlling.

30. There was no evidence by the Other Party or by the Applicant to indicate she ever renounced responsibilities attaching to 100 per cent care.  I think this is important.

31. This point gains its importance from other evidence of the Other Party.

32. The Other Party gave evidence of some 45 or 46 occasions between 6 August 2014  and 31 December 2014  when she was in contact with Child A’s psychologist and, occasionally, Child A’s psychiatrist.  Most of these contacts were by telephone — sometimes two or three conversations a day.  On 26 November 2014 there were apparently six telephone calls to the psychologist.  Sometimes there were consultations in person with the psychologist and/or psychiatrist and sometimes Child A was in attendance (17 and 24 September, 15 and 22 October 2014).  On 3 December 2014 a consultation took place in the hospital between the Other Party, Child A and her psychologist.  There were many times when there was serious concern about Child A’s suicidal and other tendencies.

33. I accept this evidence of the Other Party, which was not seriously challenged by the Applicant except in one relatively minor respect.

34. In doing so, however, I am not satisfied that there has been any change in actuality in the pattern of care.  I decline to say I am satisfied that every time Child A went missing or was hospitalised the pattern of care was broken.  The evidence is to the contrary effect.

35. In reality, based on this evidence, the pattern of care was being maintained.

36. That is the finding I make having regard to all the evidence presented.

37. It follows that I must affirm the decision under review in this proceeding.

    Proceeding  2015/5003

38. The issue in this proceeding is whether Child A left the Other Party’s care on 13 January 2015.

39. The Applicant argues that Child A did leave the Other Party’s care on that date.

40. The Other Party cannot recall whether Child A left on that date or not; but agrees Child A left from 31 January 2015.

41. The Applicant relies on a number of factors in support of his position.  One is that he was told by Child B, who was living with him together with Child C, that Child A had left the Other Party on 13 January 2015.  It is apparent from the discussion above in proceeding 2015/3758 that Child A had run away many times before.  After running away on this occasion she stayed on the streets with her boyfriend and Child B.  This was said to be because Child A did not want to be involved in conflict at home.  I note this is not quite consistent with the earlier explanation – that the Other Party was possessive and controlling.  But it is not necessarily inconsistent either.

42. The Applicant says he was in occasional contact with Child A during the immediate period after 13 January, and indeed on 18 and 19 January paid for hotel accommodation for both Child A and Child B in a hotel in South Australia.

43. These various matters do not in my view establish in actuality a change in the pattern of care.

44. Again, I have no statements by Child A or Child B or by anyone on their behalf.   That Child A apparently said she did not want to be involved in conflict at home does not to my mind show repudiation of the pattern of care. 

45. A child running away from home does not of itself therefore show a change in the pattern of care. It does, however, indicate a child who is upset – rightly or wrongly - about matters at home.  But the vicissitudes of circumstances in the care of a child must be taken into account: a child constantly or frequently running away from home may show nothing of relevance to the actual pattern of care being followed or being sought to be followed.

46. The Other Party in evidence pointed out that Child A was with her on a short family holiday on the Australia Day long weekend in2015; –- and indeed that she had been with her even earlier.  That is to say, Child A was with her that long weekend and the preceding day or two, perhaps from the Thursday before. The Other Party then said that Child A went to school after the long weekend and left from her house. There was thus, she says, no significant break in care from the time before the long weekend until the time near the end of January.

47. I do not regard this evidence of the Other Party as having been seriously challenged by the Applicant.

48. Accepting the Other Party’s evidence as I do, I cannot see how the pattern of care has in actuality changed.  Between 13 January and 31 January 2015, there is a break from 13 January caused by Child A running away. But no new care arrangement was in place of a kind that would itself qualify as a pattern rivalling the pattern of care already in place.

49. Despite Child A running away, I cannot see that the pattern of care has been abandoned or that the actualities show a change in pattern.  The activities with the Other Party from shortly before the long weekend to shortly after it confirm that the usual pattern of care was still holding. This is even though in the early part, and on 13 January, Child A ran away yet again, and even though during a small portion of this time she was in accommodation with Child B paid for by the Applicant. No rival pattern developed such as to show that the current pattern had been discarded or renounced by the Other Party.

50. In reality, as I found in proceeding 2015/3758, the pattern of care based on the evidence was being maintained.  I am not satisfied that there was a break in the pattern of care on and from 13 January 2015, particularly in view of events in later January.

51. I make that finding having regard to the evidence presented. It is most unfortunate that Child A has run away from home so often and has had to be hospitalised so frequently.  I accept that these have been very trying times indeed.

52. It follows that I affirm the decision under review in this proceeding.

    CONCLUSION

53. I affirm the reviewable decisions.

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member

.....[sgd]...................................................................

Associate

Dated 19 February 2016

Date of hearing	20 January 2016
Applicant	In person
Advocate for the Respondent	Belinda Lewis - Child Support Registrar
Other Party	In person