Dune and Simmons (Child support)

[2018] AATA 335

Dune and Simmons (Child support) [2018] AATA 335 (11 January 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/BC013028

APPLICANT:  Miss Dune

OTHER PARTIES:  Mr Simmons

Child Support Registrar

TRIBUNAL:  Member P Jensen

DECISION DATE:  11 January 2018

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides to record Miss Dune as providing 100% care and Mr Simmons as providing 0% care to [Child 1] from 12 July 2017.

CATCHWORDS
Child Support – Percentage of care – Determination of the likely pattern of care – Whether terminating event happened - 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

1. Miss Dune and Mr Simmons are the parents of [Child 1] who was born in 2003. By way of background, the Department of Human Services – Child Support (“the CSA”) recorded Miss Dune as providing 100% care from 1 January 2016, and it recorded neither parent as providing care from 12 May 2016, and it recorded Mr Simmons as providing 100% care from 31 July 2016.

2. On 1 March 2017, Mr Simmons informed the CSA that [Child 1] “is currently not in the care of either parent.” If that were correct, it would have constituted a terminating event: subsection 12(2AA) of the Child Support (Assessment) Act 1989 (“the Act”). On 2 March 2017, Mrs Simmons, who is Mr Simmons’wife and CSA representative, informed the CSA that Mr Simmons was continuing to provide financial support to [Child 1]. The CSA decided to continue to record Mr Simmons as providing 100% care.

3. On 12 July 2017, Miss Dune informed Centrelink that she had been providing full-time care since 5 June 2017. Centrelink decided to record her as providing 100% care from 5 June 2017 for family tax benefit purposes. The CSA also decided to record her as providing 100% care but, for child support purposes, she was recorded as providing that care from 12 July 2017 because she did not advise of the change in care within a reasonable period or within 28 days of the change in care: sections 54G, 54F, 49, 50 and 54B of the Act.

4. Mr Simmons promptly objected to the CSA’s decision and on 30 November 2017 an objections officer allowed his objection. The objections officer decided that [Child 1] had been in neither parent’s care from 5 June 2017 and, for undisclosed reasons, the objections officer decided to terminate the child support case from 5 July 2017.

5. Miss Dune promptly sought further review and I heard the matter on 11 January 2018. Mr Simmons was unable to attend the hearing. I allowed Mrs Simmons to represent Mr Simmons and also give evidence concerning the care of [Child 1]. I spoke to Miss Dune and Mrs Simmons by conference phone.

6. In May 2017, Miss Dune was living in [Town 1] which is approximately 180 kilometres northwest of [City 1]. Miss Dune has a daughter, [Child 2], who was living in [Town 2], which is approximately 35 kilometres north of the [City 1] CBD. Miss Dune stated that on 31 May 2017, [Child 1] came to [Child 2]’s home while Miss Dune was visiting [Child 2] and they stayed with [Child 2] until 5 June 2017, and then Miss Dune and [Child 1] returned to Miss Dune’s home in [Town 1]. It was on that basis that she subsequently informed Centrelink that she had commenced full-time care of [Child 1] from 5 June 2017.

7. On 21 December 2017, [Child 1]’s Youth Justice Service Centre caseworker, [Ms A], noted in part:

   01 June 2017 – [Child 1] reported at the [Town 3] Youth Justice Office – no parent present

   12 June 2017 – [Child 1] advised that he had relocated to reside with his mother at the beginning of last week

   14 June 2017 – [Child 1] appeared in the [Town 3] Children’s Court – bail conditions to reside with his mother, curfew and no contact with co-offenders/victims – both mother and father attended Court.

8. At the hearing, Miss Dune stated that it was not in dispute that [Child 1] was in Miss Dune’s full-time care from 14 June 2017 until approximately 10 July 2017, but, in her submission, [Child 1] was not in Miss Dune’s care from approximately 10 July 2017, and that was primarily apparent from social media.

9. In the absence of any other probative evidence on point, I accept Miss Dune’s evidence, which is supported by [Ms A]’s records, that Miss Dune commenced full-time care of [Child 1] from 5 June 2017. Ordinarily that would dispose of the matter, and if there was a subsequent change in care, including a change in care that resulted in a terminating event, a separate decision could be made by the CSA in respect of that change in care and the parents would have separate review rights in respect of that decision. In this case, the matter is a little more complicated because the objections officer also decided to record a terminating event from 5 July 2017. The key issue in dispute between the parents is whether a terminating event occurred in July 2017, or shortly thereafter. I indicated that it was desirable in the circumstances to also consider that issue, and to that end I would question Miss Dune and Mrs Simmons in respect of the details of the evidence that had been provided to the Tribunal concerning the period prior to 31 August 2017. Miss Dune and Mrs Simmons were agreeable to that course of action and that is what occurred.

10. Miss Dune stated that [Child 1] was in her physical care every night from 5 July 2017 to 30 August 2017. She said that that care was often provided at her home but it was occasionally provided at [Child 2]’s home. Miss Dune sometimes visited [Child 2] to see her (Miss Dune’s) grandchild, and she would sometimes take the opportunity to also attend to other matters that were more difficult to attend to in [Town 1]. She explained that [Town 1] has limited facilities. Miss Dune acknowledged that she, at least briefly, ceased providing physical overnight care from 31 August 2017.

11. Miss Dune and Mrs Simmons agreed that [Child 1] has been diagnosed with [a medical condition] (although they disagreed on the precise wording of the [condition]). Miss Dune stated that he has also been diagnosed with [another medical condition].

12. Mrs Simmons stated that Miss Dune had not provided physical care every night during the period in question. She said that she (Mrs Simmons) and [Child 1] had been present at family functions on 12 June, 5 July and 15 August and Mr Simmons had driven [Child 1] from those events he had not driven [Child 1] to Miss Dune’s home. She said that on the first two occasions he had driven him to a [Ms B]’s home and on the third occasion he had driven him to a Mr[A]’s home. Mrs Simmons said the first two family functions ended in the early afternoon and third family function ended around 9pm. Miss Dune said that [Ms B]’s home was near [Child 2]’s home and [Child 1] may have made his way from [Ms B]’s home to [Child 2]’s home while Miss Dune was staying with [Child 2]. It was difficult to explore the matter further in the absence of further contemporary file notes and given the subsequent passage of time. In fairness to Miss Dune, those particulars do not appear to have been raised previously. For example, on 20 July 2017, Mr Simmons informed the CSA that [Child 1] “currently resides on [City 2] and other various locations as evidenced by social media communications and police contact with us.” He provided the same information on 15 August 2017. On 31 August 2017 he informed the CSA that “[Child 1] currently drifts between, his sisters [sic] house in [Town 4] and his friends houses in [Town 3] and [City 2].”

13. Mr Simmons also provided a number of photographs which he submitted supported the conclusion that [Child 1] was not in Miss Dune’s full-time care. For example, a photograph dated “11 July” shows a boy apparently having his hair cut by two unidentified individuals in a nondescript bathroom. Mr Simmons submitted that it was evidence that [Child 1] was living with friends in July 2017. Miss Dune stated that the photograph was taken in [Child 2]’s bathroom. Another photograph shows a boy holding a child in a nondescript car park. It appears that the original photograph includes the name Ms Dune and a screenshot of the photo was taken from [Ms D]’s photo; her name appears in a banner in the bottom left hand side of the screenshot. Mr Simmons submitted that it was evidence that [Child 1] was living in [City 1] with his sister. Miss Dune said she took the photograph and [Ms D] is her step-mother. It is not necessary to set out the details of each photograph. I was not assisted by the photographs.

14. Mrs Simmons also provided eight Snapchat Login records. They are all in the same format. For example, the first record states:

    Hi [email ID],

    It looks like someone logged into your account from device named “ZTE T815” on 07/10/2017 at 2:24:28 UTC. The login took place somewhere near [City 1], [STATE 1], UP [IP address deleted].

15. Mrs Simmons explained that she and Mr Simmons have parental controls over [Child 1]’s Snapchat account and the records identify when he accessed the account and where he was when he accessed the account.

16. The date is in a month/day/year format. 2:24am UTC on 10 July 2017 was 12:24pm AEST on 10 July 2017. Even if it were established that [Child 1] was near [City 1] shortly after midday on 10 July 2017, that would not assist in ascertaining whether [Child 1] remained in Miss Dune’s general full-time care. Some of the other records suggest that [Child 1] was not at Miss Dune’s home at particular points in time that were late at night. However, like the photographs, they shed almost no light on the more substantial issue of whether [Child 1] was in Miss Dune’s general full-time care.

17. Miss Dune said her Wi-Fi system scatters IP addresses, so the Snapchat Login records do not constitute reliable evidence. She did not provide documentary evidence in support of that statement.

18. Mr Simmons and Mrs Simmons provided other evidence which also raises suspicions about whether [Child 1] remained in Miss Dune’s full-time care. However, I am required to make findings of fact on the balance of probabilities, based on the evidence that has been provided to the Tribunal. A mere suspicion, without more, is an insufficient basis upon which to make such a finding. Miss Dune gave sworn evidence that [Child 1] remained in her full-time care from 5 June 2017. Further, [Ms A] wrote on 24 October 2017:

    I had casework responsibility for [Child 1] as per dates below [i.e. the next sentence]. This letter is to confirm that [Child 1] had resided with mother Ms Dune at [address] [Town 1] [STATE 1] [postcode] from 05 June 2017 to 04 September 2017.

19. In response, Mr Simmons stated on 26 October 2017:

    The document provided by [Town 5] Youth Justice is broad and unsubstantiated. In speaking with the caseworker, we have established that in the period from 5 June to 4 September, [Ms A] (caseworker) only attended with Ms Dune with [Child 1] present on one occasion during this period so the remainder of the time remains assumed that [Child 1] was present and is also untrue as I collected [Child 1] from a friends [sic] house on 31 August and dropped him at another friends house in [Town 3], and then visited with him the next day in [Town 3] therefore it was impossible that [Child 1] was with his Mother.

20. First, if a child is not physically present with a parent on a particular night, it does not automatically follow that the child was no longer residing with that parent. Second, [Ms A] provided further details on 21 December 2017. The first three entries of her chronology appear at paragraph 7 of these Reasons for Decision. Her chronology continues:

    22 June 2017 – [Child 1] was contacted via his mother’s mobile phone and directed to report for Probation next on 26 June 2017 (in [Town 1])

    26 June 2017 – [Child 1] reported as directed – his mother was present

    03 July 2017 – [Child 1] reported as directed – his mother was present

    10 July 2017 – excused from reporting – contact from mother advice received that she and [Child 1] were still in [City 1]

    17 July 2017 – excused from reporting – contact from mother advice received that she and [Child 1] were still in [City 1]

    24 July 2017 – [Child 1] reported as directed – his mother was present

    31 July 2017 – [Child 1] reported as directed – his mother was present

    07 August 2017 – [Child 1] reported as directed – his mother was present

    14 August 2017 – [Child 1] was excused from reporting as directed due to the Youth Justice caseworker being unavailable

    21 August 2017 – [Child 1] was excused from reporting as directed due to the Youth Justice caseworker being unavailable – phone discussion with mother

    28 August 2017 – [Child 1] reported as directed via his mother’s phone

    04 September 2017 – [Child 1] failed to report as directed – advice from mother that [Child 1] had been transported to [Town 2] by his father

21. [Child 1]’s contact with his mother on those dates is consistent with Miss Dune’s evidence that he remained in her full-time care until at least the end of August 2017, and I find accordingly. It follows that a terminating event did not occur prior to 31 August 2017. To reiterate an earlier point, I have not considered whether a terminating event occurred on or after 31 August 2017.

22. Miss Dune did not report the change in care until 12 July 2017. A child support case has been in force for many years and it is reasonable to assume that Miss Dune was aware of the need to report changes in care promptly. I also note that an earlier dispute concerning a change in care in 2016 was the subject of a number of reviews including a review by this Tribunal (differently constituted). I find that Miss Dune did not report the change in care within a reasonable period and it was not reported within 28 days of the change in care occurring. The change in care therefore has effect for child support purposes from the date of notification: sections 54G, 54F, 49, 50 and 54B of the Act.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides to record Miss Dune as providing 100% care and Mr Simmons as providing 0% care to [Child 1] from 12 July 2017.