Enriquez and Dario (Child support)

[2020] AATA 3669

Enriquez and Dario (Child support) [2020] AATA 3669 (14 July 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC018933

APPLICANT:  Ms Enriquez

OTHER PARTIES:  Child Support Registrar

Mr Dario

TRIBUNAL:Member M Douglas

DECISION DATE:  14 July 2020

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the percentages of care for [the child] are 100% for Ms Enriquez and 0% for Mr Dario from 11 August 2019.

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 set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted 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 is a review of an objection decision a delegate of the Child Support Registrar made on 17 December 2019 relating to the care percentages used for Ms Enriquez and Mr Dario for their son [the child] in a child support assessment.

2. The Child Support Registrar acts through a government department known as Services Australia.  It is convenient to refer to the Child Support Registrar as Services Australia in these reasons.

1. As at 11 August 2019 the care percentages used in the assessment for [the child] were 100% for Ms Enriquez and 0% for Mr Dario.  Those care percentages had applied since 23 March 2018.

2. On 15 August 2019 Mr Dario contacted Services Australia and told it that from 11 August 2019 [the child] had been in his care for 100% of the time.  On 30 August 2019 Ms Enriquez contacted Services Australia and told it that [the child] had been residing with various friends and would eventually return to live with her.  On that same day Mr Dario also told Services Australia that [the child] had been staying at a friend’s house on average for one night a week over the last three weeks but he was still making the decisions for [the child].  Mr Dario subsequently told Services Australia on 3 October 2019 that [the child] had only stayed a couple of weeks at his place from 11 August 2019 and then went to live with a friend.

3. On 3 October 2019 Services Australia made a finding that neither party had care of [the child] from 11 August 2019.  Services Australia decided to revoke Ms Enriquez’s care percentage of 100% for [the child] with that taking effect on 10 August 2019.  It also determined that her care percentage for [the child] was 0% from 11 August 2019.  In effect, it determined that a terminating event had occurred for [the child].

4. On 22 October 2019 Ms Enriquez objected to the decision.  On 17 December 2019 Services Australia disallowed her objection.

5. Ms Enriquez then applied to the Tribunal for a review of the objection decision.

6. The Tribunal heard her application on 14 July 2020. She and Mr Dario both participated in the hearing by telephone and each gave sworn oral evidence. No one from Services Australia appeared. Services Australia did however provide the Tribunal, in accordance with its obligation under subsection 37(1) of the Administrative Appeals Tribunal Act 1975, with all the documents it had relevant to its objection decision.  Those documents were provided to Ms Enriquez and Mr Dario and are paginated 1–110. 

ISSUE

1. The issue the Tribunal has to consider is whether there was a variance between Ms Enriquez’s existing percentage of care for [the child] and [the child]’s actual care from 11 August 2019.

CONSIDERATION

1. Ms Enriquez’s evidence was that [the child] has several mental health issues including [details deleted].  Her evidence was to the effect that [the child] had, as a consequence of his mental health issues, problems controlling his anger and would frequently become frustrated and angry and run away from her house and stay for brief periods of time at one of his friends’ places.  Ms Enriquez said [the child] would always return to her. 

2. Ms Enriquez also said that [the child] had a good relationship with Mr Dario’s present partner, [Ms A], and oftentimes he would, after a flare of temper, go to Mr Dario’s place to talk to [Ms A].  Ms Enriquez’s evidence was that [the child] does not have a good relationship with Mr Dario and when at Mr Dario’s place there was no interaction between [the child] and Mr Dario.

3. Ms Enriquez said that on 11 August 2019 what occurred was consistent with [the child]’s pattern of behaviour described in the prior paragraph.  That is, [the child] got frustrated and angry and ran away from her house.  She said that [the child] may have gone to Mr Dario’s place so as to talk with [Ms A] for a while, but Ms Enriquez said she did not know whether that did occur.  Ms Enriquez said that if [the child] did do that, he would have stayed there for no more than a couple of hours, consistent with what he had done previously. 

4. Ms Enriquez said that [the child] stayed away from her place for approximately two weeks after 11 August 2019 and during that time he resided with [Ms B], who is the mother of [the child]’s best friend.  Ms Enriquez said that during the two weeks he was away, she gave [Ms B] a total of $200 to cover [Ms B]’s costs in feeding and accommodating [the child].  Ms Enriquez said that she also regularly spoke with [the child] by telephone whilst [the child] was there to ascertain how he was going.  Ms Enriquez also said that within that time there were two or three occasions when [the child] actually returned to her house for brief periods to speak with her about various things. 

5. Ms Enriquez provided to Services Australia a letter from [Ms B] dated 6 September 2019 which contained the following paragraphs:

   This letter is to notify you that [the child] has been staying at my house since the 11 August. 

   He went back to his mother’s house on the 19 August.  [the child] has been back and forth since then staying between his mother’s house and mine.

6. Mr Dario’s evidence to the Tribunal was that [the child] did come to live with him for a three-week period from 11 August 2019.  At the end of that time they had an argument and [the child] then went to [Ms B]’s place.  He said that [the child] was at [Ms B]’s place for five weeks. 

7. The Tribunal observes that [Ms B]’s letter of 6 September 2019, which is approximately four weeks after [the child] fled Ms Enriquez’s house on 11 August 2019, corroborates Ms Enriquez’s evidence.  Further, Mr Dario concedes that [the child] did leave his place to reside with [Ms B]. 

8. There is a clear conflict between the version that Ms Enriquez provides the Tribunal with respect to what occurred with [the child] after 11 August 2019 and that which Mr Dario provides.  Given that [Ms B]’s letter supports Ms Enriquez’s version, and noting too that Mr Dario has conceded that [the child] did go to reside with [Ms B], the Tribunal prefers the account provided by Ms Enriquez with respect to what occurred with [the child] on 11 August 2019 and thereafter.

9. In other words, the Tribunal finds that [the child] did, in effect, run away from Ms Enriquez’s residence to stay with [Ms B] for a brief period of time and then returned to live with Ms Enriquez. 

10. The Tribunal in DRRM and Child Support Registrar (Child support second review) [2016] AATA 91 had to consider the care percentage determinations made with respect to a “runaway child”, who had often been reported missing. The Tribunal held:

    [25]  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.

    [26]  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.

11. I accept Ms Enriquez’s evidence that for the period of time that [the child] resided with [Ms B] she provided financial support for [the child] in the form of paying [Ms B] some money to cover the expenses [Ms B] would occur as a consequence of [the child] staying with her.  I also accept Ms Enriquez’s evidence that during that period she provided care for [the child] in the form of providing emotional and moral support by calling him to monitor his welfare.  Further, [the child] returned to her on occasion and I am satisfied that that would have been for the purposes of obtaining moral support.

12. The Tribunal considers that, having regard to those circumstances, there was no change in [the child]’s care from 11 August 2019.  In other words, the actual care that was taking place of [the child] after 11 August 2019 corresponded with the percentage of care used for [the child] for Ms Enriquez preceding 11 August 2019.  Services Australia was therefore wrong to revoke Ms Enriquez’s percentage of care.  The objection decision must therefore be set aside and a decision made that, in effect, restores Ms Enriquez’s percentage of care.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the percentages of care for [the child] are 100% for Ms Enriquez and 0% for Mr Dario from 11 August 2019.