Haggett and Sawden (Child support)

[2018] AATA 2233

Haggett and Sawden (Child support) [2018] AATA 2233 (19 April 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/BC013485

APPLICANT:  Mr Haggett

OTHER PARTIES:  Child Support Registrar

Miss Sawden

TRIBUNAL:Member A Byers

DECISION DATE:  19 April 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS
Child support - Percentages of care - No change to the pattern of care - 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. Mr Haggett and Miss Sawden are the parents of [Child 1] and this matter relates to her care.

2. On 15 August 2017 Mr Haggett contacted the Child Support Agency (CSA) to say he was informed by a third party (the parties’ daughter [Ms A]) that [Child 1] was residing with her boyfriend [Mr B] since 20 June 2017 and supporting herself working at [Company 1]’s.  At the time of contact the CSA was calculating Mr Haggett’s child support liability on the basis that Miss Sawden had 100% of [Child 1]’s care. 

1. On 23 September 2017 the CSA refused to make a new care determination and on 17 January 2018 an objections officer disallowed Mr Haggett’s objection. 

2. Mr Haggett sought review of this decision by the Tribunal on 12 February 2018 and the application was heard by conference telephone on 19 April 2018 in [Australian city 1].   

3. At hearing I accepted into evidence the subsection 37(1) documents provided by the CSA, comprising folios 1 to 89 (marked Exhibit 1).  The parties gave sworn evidence by conference telephone.   The Child Support Registrar was not present.  

CONSIDERATION

1. The division of care of an eligible child is regulated by Division 4 of Part 5 of the Child Support (Assessment) Act 1989.[1]  Section 49 applies where a parent has no pattern of care of a child and section 50 where there is a pattern of care.  As noted, prior to Mr Haggett’ contact on 15 August 2017 the care determinations (under sections 49 and 50) in place were that he had 0% and Miss Sawden 100% of [Child 1]’s care.   

   [1]        All legislative references are to this Act unless otherwise stated.

2. Before a determination under section 49 or 50 can be made in relation to a person, the care determination in place for that person must be revoked.  A revocation under section 54F can occur only if the Registrar were to determine (under section 49 or 50) a different percentage of care and the person’s cost percentage would change as a result. 

3. Sections 51 and 52 apply where the person with reduced (actual) care has taken reasonable action either to ensure that a care arrangement[2]  is complied with, or to make another care arrangement.  These provisions are not relevant to the present matter.   

   [2] A care arrangement is a written agreement between parents, a parenting plan, or court order dealing with the care of a child – see section 5 and subsection 3(1) of the A New Tax System (Family Assistance) Act 1999.

4. As noted, Mr Haggett contacted the CSA on 15 August 2017 to say a third party (the parties’ daughter [Ms A]) informed him that [Child 1] was residing with her boyfriend [Mr B] since 20 June 2017 and supporting herself working at [Company 1]’s.   

10.  [Ms A] subsequently signed a statement, received by the CSA on 25 August 2017, to the effect that she “ran into” [Child 1] and [Mr B] and was informed by [Child 1] that she had not been living with Miss Sawden “for a while”.  [Ms A] indicates she is unable to say when [Child 1] left Miss Sawden’s residence and she makes no reference either to where [Child 1] was living or her work arrangements.

11.  In a signed statement, received by the CSA on 7 September 2017, [Child 1] denies that she moved out to live with [Mr B] and indicates she continues to reside with Miss Sawden. 

12.  At hearing Mr Haggett stated he rang [Child 1] not long after [Ms A]’s contact on 24 August 2017 “to say hello”.  I understand that Mr Haggett’s contact with [Child 1] prior to this was infrequent and that their relationship was strained.  According to Mr Haggett, [Child 1] volunteered she was living with [Mr B] and working full time at [Company 1]’s but stated she would support Miss Sawden in any argument involving child support.

13.  Miss Sawden states that [Child 1] has resided with her at all relevant times and continues to do so.  Miss Sawden indicated [Child 1] might stay with [Mr B] at his mother’s home two or three nights a month and with her grandmother about once a fortnight.  It is evident that there is a degree of tension between [Ms A] and Miss Sawden, who has the care of [Ms A]’s child [grandchild 1].  I understand this is supervised by the Department of Child Safety.

14.  Miss Sawden indicated that [Child 1]’s version of Mr Haggett’s telephone call is rather different.  According to [Child 1]’s version, Mr Haggett repeatedly attempted to have her say she was living with [Mr B] and she ended up terminating the call.  Mr Haggett denies this happened.

15.  Miss Sawden said [Child 1] and [Grandchild 1] are very close and [Grandchild 1] experiences separation anxiety when [Child 1] is not about.  [Grandchild 1] attends day care at [Day Care 1] and Miss Sawden has supplied a statement from the provider to the effect that [Child 1] attends day care with Miss Sawden on a daily basis to drop off and collect [Grandchild 1]. 

16.  As to [Child 1]’s employment, Miss Sawden said she has between 10 and 15 hours work at [Company 1]’s weekly but is hoping to obtain a crew manager’s position with more hours when she turns 18.

17.  I accept there is an element of conflict between Miss Sawden and [Ms A], which in my view casts some doubt of the accuracy of her untested statement.  I accept [Child 1] may have informed Mr Haggett that she would support Miss Sawden in child support matters but draw no adverse inference from this.  [Child 1] presumably would offer this support were Miss Sawden telling the truth.  Although untested, I see no reason to discount [Child 1]’s statement.

18.  I recognise that the statement from [Day Care 1] does not purport that [Child 1] continued to reside with Miss Sawden.  However, the regularity with which [Child 1] accompanied Miss Sawden, both in the mornings and afternoons, strongly suggests she was residing with Miss Sawden.

19.  Ultimately, I prefer Miss Sawden’s evidence and do not consider Mr Haggett has established that a change of care as claimed has occurred.

DECISION

The decision under review is affirmed.