Gladwin and Child Support Registrar (Child support)

[2019] AATA 1699

Gladwin and Child Support Registrar (Child support) [2019] AATA 1699 (3 June 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC015910

APPLICANT:  Ms Gladwin

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member P Sperling

DECISION DATE:  3 June 2019

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 – existing percentage of care determinations revoked and new determinations made – 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. Ms Gladwin and [Mr A] are the parents of [Child 1] (the child).

2. The Department of Human Services – Child Support (the Department) had determined that Ms Gladwin had a percentage of care of 100% for the child and [Mr A] had a percentage of care of 0% for the child from 16 February 2017.

3. On 13 November 2018, [Mr A] notified the Department that the care of the child had changed and that he had 100% care of the child from 8 November 2018. Ms Gladwin disputed that [Mr A] had 100% care of the child and said that at this time the child was staying ‘all over the place’ including at her grandmother’s, father’s and her friends’ houses.

4. On 11 December 2018, the Department decided to change the care determination to 100% care for [Mr A]. Ms Gladwin disagreed with the decision and lodged an objection on 13 December 2018. On 11 February 2019, an objections officer disallowed Ms Gladwin’s objection.

5. On 12 February 2019, Ms Gladwin lodged an application to the Administrative Appeals Tribunal (the Tribunal) for a review of the decision. [Mr A] was invited but did not apply to be a party, and so was not made a party to this review.  The hearing took place on 3 June 2019. Ms Gladwin participated in the hearing via conference telephone and gave sworn evidence. In making its decision the Tribunal took into consideration the documents (hearing papers pages 1 to 163) provided by the Department, which were also sent to Ms Gladwin. Ms Gladwin also provided additional information to the Tribunal (additional submissions pages A1 to A4), which was provided to all parties to the review.

6. Ms Gladwin provided written evidence to the Department from the child and sought to have the child give evidence during the hearing. The Tribunal advised during the hearing that it would not take oral or written evidence from the child, as it did not consider it is in the best interests of the child and/or the parties to do so.

CONSIDERATION

1. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act).

2. The legal issues for the Tribunal in this case relate to an existing determination of care in place, which was that Ms Gladwin had 100% care of the child and [Mr A] had 0% care of the child. The Tribunal must determine whether the existing determination of care is to be revoked and, if so, from what date a new determination of care is to be made.

Has there been a change in the care of the child?

1. The Act requires the decision maker to make 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 divergence occurs, a parent can notify the CSA 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 was likely to happen thereafter?

10.Therefore in this case the Tribunal is required to determine what percentage care Ms Gladwin and [Mr A] were likely to have for the child from 8 November 2018. In considering this matter the Tribunal is of the view that it can take into account any evidence of the intended care arrangements for the child as at 8 November 2018 as well as evidence pertaining to the actual care of the child up to 11 December 2018, which was the date of the Department’s original decision.

11.Ms Gladwin stated at the hearing that the child was living with her 100% of the time until 8 November 2018 when they had an argument about whether the child could go out or not. She said that the child argued with Ms Gladwin when she wasn’t allowed to go out, punched holes in the wall and left the house to live with her father at her grandmother’s house.

12.Ms Gladwin said that after the child left on 8 November 2018 she continued to liaise with her regularly, in the hope that she would return to live in Ms Gladwin’s house, and sometime shortly after that the child told her that she was intending to go and stay with friends. Ms Gladwin acknowledged that the child lived with [Mr A] for one week, until 14 November 2018, but she maintained that after this the child spent all of her nights either at Ms Gladwin’s house or at her friends’ houses. Ms Gladwin said that this was the school holiday period and the child was going out regularly with her friends and often staying at their houses overnight. Ms Gladwin maintained that she continued to care for the child over this period and continued to have legal responsibility for the child over this period as she had always done. She said during this time she helped the child access medical services by sending her photographic details of her Medicare card and pension card and some time in November or December 2018 she attended medical appointments with the child, but was unable to specify the dates or provide any evidence of this.

13.Ms Gladwin also said that she provided ad hoc amounts of money to the child throughout this period, even after she left home on 8 November 2018, and that this was mostly provided via cashless transfers into the child’s bank account. The Tribunal notes that the hearing papers contain bank statements showing six bank transfers totalling $340 from 8 November 2018 to 10 December 2018, which Ms Gladwin states were transfers of funds to the child. Ms Gladwin also said that she went shopping regularly with the child during the day after 8 November 2018.

14.In terms of actual nights of care, Ms Gladwin told the Tribunal that the child slept at her house on a number of occasions, the dates of which she reported to the Department on 11 January 2018 as follows:

-    25 November 2018;

-    2, 4, 5, 7, 11, 17, 18, 23, 24, 25, 31 December 2018; and

-    1, 3, 4, 5, 6, 7, 9 January 2019.[1]

[1] Hearing papers page 63 which records advice provided by Ms Gladwin on 11 January 2019.

15.Ms Gladwin said that these dates listed were the days on which the child slept over at her house and that, after 14 November 2018, if the child was not sleeping at Ms Gladwin’s house then she was sleeping at friends’ houses but not at her father’s house.

16.The Tribunal notes that Ms Gladwin conceded in her oral evidence to the Tribunal that the child left her home after an argument between them, which occurred on 8 November 2018. The issue in this case is whether it was intended that the child would live with [Mr A] from this date and whether there is evidence that she did live with [Mr A] up to 11 December 2018.

17.Ms Gladwin provided a range of third party statements and a personal statement to support her claim that the child only lived with [Mr A] for one week, from 8 November 2018 to 14 November 2018, and that the child lived with Ms Gladwin and other friends after that week. This evidence is summarised as follows:

Letter from [Ms B], undated[2]

[2] Additional submission page A2

18.This letter states that the child has always been in her mother’s care and living with her in [Suburb 1] and that [Ms B] has never seen the father in their lives. It also  states that the child left home on 8 November 2018 and stayed at her grandmother’s house for a week and then she stayed at friends’ houses and also at [Ms B]’ house in [Suburb 2] during the school holidays and spent time with [Ms B’s] daughter. It further states that the child also stayed at her mother’s house at New Years and they both came over to [Ms B’s] house on that day.

Letter from [Ms C], 8 April 2019[3]

[3] Additional submission page A3

19.This letter states that [Ms C] is a family friend of the child and that a week after 8 November 2018 she and the child were spending time together every day and at night she would go home to her mother’s house. It further states that the child has been staying with her mother, Ms Gladwin, and that both she and the child have had sleepovers at Ms Gladwin’s house and other gatherings. It further states that the child only stayed at her father’s house for one week from 8 November 2018 and then went back to her mother’s house.

Letter from [Mr D], 9 April 2019[4]

[4] Additional submission page A4

20.This letter states that [Mr D] is the child’s older brother and Ms Gladwin’s son. It advises that [Mr D] does not stay with Ms Gladwin in her house but that to the best of his knowledge the child left the family home for a period of one week, from 8 November 2018 to stay with her father. It further states that she then left the father’s home and was frequently visiting and spending the night with her friends, friends of the family and has been in the mother’s care from 16 November 2018.

Letter from Ms Gladwin, 30 April 2019[5]

[5] Hearing papers page 103

21.This letter states that Ms Gladwin has provided proof that the child only left her care for one week from 8 November 2018 to 14 November 2018. It also states that Ms Gladwin has been transferring the child money, paying for clothing, food, mobile phone and taking her to school and back. It also notes that she has provided bank statements and other letters to confirm this including a letter from the child.

22.In this case there is no dispute that the child lived with [Mr A] for the week commencing 8 November 2018, sleeping overnight with him at the home in which he was living with his mother (the child’s grandmother) and other family members.

23.The Tribunal also notes, as did the Department’s objections officer, that Ms Gladwin provided contemporaneous evidence about where the child was living in her discussions with the Department at the time. These discussions between the Department and Ms Gladwin are documented in the hearing papers and indicate that Ms Gladwin’s advice to the Department has changed over time, as follows:

-on 30 Nov 2018 Ms Gladwin advised the Department that the child has not been spending all the time with father, she is mostly with friends, she stays at her grandmothers, her fathers and friends’ houses. She also advised that the child  ‘has slept with mother just for a couple of days but mother said she does not keep a calendar, maybe 3-4 times’ and that, last week they went shopping together and she had to buy her items;[6]

[6] Hearing papers page 28

-on 18 December 2018 Ms Gladwin advised that the child is not living with father and is living with grandmother and friends. She also advised that she spends every day with the child, they go shopping together and are trying to work things out. ‘She further advised that child does not live with her because she has rules and she puts holes in my walls’ but she is not in father’s 100% care;[7]

[7] Hearing papers page 55

-on 28 December 2018 Ms Gladwin advised that child is living with grandmother and that father resides with grandmother too. She also advised that she speaks to the child everyday but does not spend every day with the child. She stated that she has transferred about $300 to the child and that the child stayed with her on 24 December 2018 and would be staying at her friends in [Suburb 3] for most of the holidays; [8]

-on 11 January 2019 Ms Gladwin gave the Department a list of dates on which the child had slept at her house and was in her care and advised that on the other nights the child was staying at friends’ houses but that ultimately mother remains responsible for the child.[9]

24.During the hearing the Tribunal drew Ms Gladwin’s attention to the fact that the advice that she gave to the Department in November and December 2018, which suggests that the child was not in her care during this period except for some occasional unspecified nights, was not consistent with the advice she provided to the Department on 11 January 2019, in which she said that the child was either with her or with her friends.

25.Ms Gladwin told the Tribunal that she was under a great deal of stress at the time regarding her relationship with [Mr A] and the child. She also said that she was living upstairs in the same residential address as her mother, who has dementia and required ongoing care. She said that this could explain why she didn’t describe the child’s situation correctly or consistently to the Department during her phone conversations in November and December 2018.

26.The Tribunal considered all of the evidence and was not persuaded that the third party statements provided by family and friends of Ms Gladwin, which were provided recently, were as reliable as the contemporaneous evidence provided by Ms Gladwin in her discussion with the Department during the period under consideration. The Tribunal also noted that the information provided by Ms Gladwin to the Department in various phone conversations during November and December 2018 was significantly different to the information she provided to the Department on 11 January 2018 about her care of the child. Given these considerable discrepancies, the Tribunal is not satisfied that the most recent evidence provided by Ms Gladwin is a correct representation of the actual care of the child between 8 November 2018 and 11 December 2018.

27.Having considered the circumstances in this matter and all of the available evidence, the Tribunal has determined that the child was living with [Mr A] and that [Mr A] was responsible for, and making decisions about, the child from 8 November 2018. While the Tribunal accepts that Ms Gladwin remained involved in the child’s life and provided some funds to the child from 8 November 2018, the Tribunal was persuaded that the care arrangements, as advised to the Department by Ms Gladwin during the period under consideration were a more accurate reflection of the care that was taking place at the time: that is, that the child was living with [Mr A] at the grandmother’s house, except on ad hoc occasions when she was staying overnight at friends’ houses. Further, the Tribunal is of the view that it is more likely that the child sought permission at the time from [Mr A] for ad hoc overnight stays with friends. This is because, according to Ms Gladwin’s own evidence, the child was not happy with Ms Gladwin’s ‘rules’ and [Mr A] was more likely to ‘allow her to do whatever she wants’. As such, the Tribunal is satisfied that the child remained in [Mr A]’ care during overnight stays with friends during the period under consideration.

28.Therefore, the Tribunal is satisfied that from 8 November 2018 there was a change in the care which constitutes a change to the pattern of care such that Ms Gladwin had 0% care of the child and [Mr A] had 100% care of the child.

29.Section 50 of the Act requires a new determination of a percentage of care to be made where an existing determination has been revoked and the Tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period.

[8] Hearing papers page 60

[9] Hearing papers page 63

Should the existing care determinations in relation to the child be revoked?

30.Subsection 54F(1) of the Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child or children (paragraph 54F(1)(a)).

31.The Tribunal is satisfied that a care determination was made under section 49 of the Act such that [Mr A] had a 0% care of the child from 16 February 2017. As the Tribunal has now concluded that from 8 November 2018 Ms Gladwin’s and [Mr A]’ care percentages were not the same as their previously determined care percentages, section 54F(1)(a) of the Act applies.  The Tribunal also finds that cost percentages would change if new determinations were to be made, therefore paragraph 54F(1)(b) is satisfied and, as section 54G does not apply (paragraph 54F(1)(c)), the Tribunal must revoke the existing determinations of percentages of care.

32.The Tribunal is required to consider the actual care of the child during the care period. The care period is such a period as the Child Support Registrar considers is appropriate, having regard to all of the circumstances (section 50 of the Act). In this case the Tribunal considers that an appropriate care period is the 12-month period from 8 November 2018, being the date on which [Mr A] stated that a change to care arrangements had occurred.

1. In the circumstances the Tribunal must revoke the existing determinations of percentages of care and make a new determination that Ms Gladwin has 0% care of the child from 8 November 2018 and [Mr A] has 100% care of the child from 8 November 2018.

2. The Department’s decision is therefore legally correct and is affirmed.

DECISION

The Tribunal affirms the decision under review.