Harden and Dorsey (Child support)

[2020] AATA 1017

Harden and Dorsey (Child support) [2020] AATA 1017 (10 March 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC017725

APPLICANT:  Mr Harden

OTHER PARTIES:  Child Support Registrar

Mrs Dorsey

TRIBUNAL:Member P Sperling

DECISION DATE:  10 March 2020

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides to refuse to revoke the determination of care. This means that Mr Harden’s percentage of care of 66% for the child and Mrs Dorsey’s percentage of care of 34% for the child will remain in place.

CATCHWORDS

CHILD SUPPORT – percentage of care – no change to the likely pattern of care – 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

BACKGROUND

1.Mr Harden and Mrs Dorsey are the parents of [Child 1] (the child) who was born [in] March 2001.

2.The Department of Human Services – Child Support (CSA) had determined that Mr Harden had 66% care of the child and Mrs Dorsey had 34% care of the child and with effect from 1 January 2017.

3.On 15 April 2019 Mr Harden notified CSA that care of the child had changed. He advised that he had 100% care of the child from 1 April 2019.[1]

[1] The Tribunal notes that prior to this Mrs Dorsey notified CSA on 7 January 2019 that there had been a change in care such that care from 1 January 2019 was 50% for both parents. Evidence regarding care of the child was obtained by CSA and on 28 March 2019 this request for a new determination of care percentage was rejected by CSA. The decision to reject this notification was not appealed by Mrs Dorsey and is not the subject of review in this application to the Tribunal. However, it appears that this earlier notification by Mrs Dorsey may have influenced the later decision made by CSA which backdated the change in care to 1 January 2019 even though Mr Harden notified that the change in care didn’t commence until 1 April 2019.

4.On 25 July 2019 CSA decided to change the care determination to reflect that Mr Harden had 51% care of the child and Mrs Dorsey had 49% care of the child from 1 January 2019.

5.Mr Harden objected to this decision on the basis that care did not change until 1 April 2019 and when he started to have 100% care of the child.

6.On 28 October 2019 an objections officer of CSA disallowed his objection. The effect of this decision was that the care percentages from 1 January 2019 were 51% for Mr Harden and 49% for Mrs Dorsey, as per the original CSA decision.

7.On 30 October 2019 Mr Harden applied to the Tribunal for an independent review of the objection decision.

8.The Tribunal conducted a hearing on 10 March 2020 and heard affirmed evidence in person from Mr Harden and by phone from Mrs Dorsey. The Tribunal had before it a copy of documents provided by CSA and copied to the parties (233 pages). Prior to the hearing the Tribunal received an additional submission from Mr Harden (A1 to A2). Immediately after the hearing Mrs Dorsey provided an additional submission (B1). All documents were numbered and copied to other parties. The Tribunal took into account all of the information provided in making its decision.

CONSIDERATION

9.The law relevant to care percentage determinations is found in the Child Support (Assessment) Act 1989.

10.The legal issues for the Tribunal in this case relate to an existing determination of care in place, which was that Mr Harden had 66% care of the child and Mrs Dorsey had 34% 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?

11.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?

12.The Tribunal notes that, while Mr Harden initially told CSA that he had 100% care of the child from 1 April 2019, he subsequently told CSA that he had 100% care of the child from 25 March 2019 which was then considered as his intended notification by CSA.[2] On the basis of his confirmation during the hearing, the Tribunal also accepts that Mr Harden intended to notify a change in care from 25 March 2019.

[2] CSA documents page 58

13.Therefore in this case the Tribunal is required to determine what percentage of care Mr Harden and Mrs Dorsey were likely to have for the child from 25 March 2019. In this case, as the objections officer has determined an alternative date as the date on which a change in care occurred, the Tribunal also considered whether there was a change in the percentage of care from the date determined by the objections officer, that is from 1 January 2019.

14.During the hearing Mr Harden stated that he had care of the child as per the care calendar that he maintained in his home. He showed the Tribunal a copy of the calendar and said that it was consistent with the care calendar set out in the CSA documents. He said that it was not clear why CSA had chosen to backdate the care change to 1 January 2019 and he disagreed that care had changed to 50% care for both parents at any time.

15.Mr Harden also disagreed with the dates of care as outlined in Mrs Dorsey’s calendar and questioned the reliability of her calendar because he didn’t think it was a contemporaneous record of care and Mrs Dorsey had asked the child to complete a care calendar. He also advised that some of the evidence Mrs Dorsey provided was inconclusive regarding care arrangements, including most of the text messages that she provided between herself and the child. Mr Harden also disputed a number of particular dates, including dates in April, when he says he definitely had care of the child and Mrs Dorsey had incorrectly claimed that she had overnight care. Further, he said that his care calendar included care for nights when he had to collect the child from Mrs Dorsey’s house late at night after she requested to be picked up. He also advised that there were some periods in which the child was staying with friends, or housesitting, and therefore not in the care of either parent.

16.Mr Harden also told the Tribunal that he paid for the child’s sporting fees, purchased her a car and paid for the car registration and petrol. He confirmed that Mrs Dorsey was primarily responsible for the child’s medical and dental care. He said that the child made her own decisions about schooling and that the school was in contact with both parents, although he noted that the school didn’t always advise him of all meetings regarding the child.

17.In summary, Mr Harden said that he had 66% care and Mrs Dorsey had 34% care (which he said was actually more akin to 70% care and 30% care) from 1 January 2019 and on 25 March 2019 he commenced having 100% care of the child. He said that he continued to have 100% care of the child, with only some minor departures in April 2019 during the Easter period, until the care changed back again in May 2019 to 66% care for him and 34% care for Mrs Dorsey.

18.Mr Harden acknowledged that the child did what she wanted and stayed where she wanted because she was over 18 years. He also advised that in March 2019, when care changed, he did not know what the future care arrangements would be as they didn’t reach any formal agreement on ongoing care arrangements at the time. However he said he notified CSA at the time because CSA had told him that he was required to notify CSA within 28 days of any change. Consistent with this, he also notified CSA again when the care reverted back to 66% care for him and 34% care for Mrs Dorsey in May 2019.

19.In terms of regular care arrangements from 25 March 2019, Mr Harden advised that the child was in his care most Friday and Saturday nights in line with her sporting commitments. He also advised that the child spent some time staying with friends and family members and also did housesitting for periods from March 2019 and therefore was not in the care of either parent during these periods, although he advised that when he was overseas the child was living in his house but he checked in with her on a daily basis and left money for food and petrol in his absence.

20.During the hearing the Tribunal noted that Mr Harden provided inconsistent advice about the dates he had care of the child to CSA during the review of this matter. Mr Harden explained that he is often ‘on the road’ for his job so he doesn’t have access to his care calendar to refer to when he is speaking to CSA.

21.Mr Harden also expressed concern that the third party statements that he provided to CSA had not been referred to or properly considered by the objections officer.

22.During the hearing Mrs Dorsey told the Tribunal that both parents have had 50% care of the child for many years. She said, consistent with this, in January 2019 she had reported a change in care to 50% care for both parents but she did not appeal CSA’s decision to disallow this change because she didn’t want to create more angst between herself, Mr Harden and the child.

23.Mrs Dorsey said that she became very concerned when Mr Harden reported a change in care to 100% care for himself as she thought this did not reflect the 50% care that was in place at the time. She therefore presented detailed evidence, including text messages, financial information and a detailed care calendar with supporting notes to refute his claim.

24.During the hearing Mrs Dorsey told the Tribunal that from 1 January 2019 both parents had 50% care of the child. She said that in March 2019 the child was with her more than Mr Harden and was with Mr Harden more than her in April 2019, but that the care roughly equated to 50% for each parent over time and she has encouraged this. Mrs Dorsey also confirmed that the child made her own decisions about care and therefore the care was usually ad hoc depending on the wishes of the child at the time.

25.Mrs Dorsey said that she had responsibility for schooling and day to day care, including appointments with doctors, dentists and allied health professionals as well as school appointments. She advised that she paid for all medical and health care costs and attended all appointments with the child. She also said that she made a decision, in consultation with the child, about where the child went to school and paid for her school fees and books. Further, Mrs Dorsey said that she was the person who was in regular communication with teachers, co-ordinators and counsellors at the school regarding the schooling and welfare of the child and was the main contact with the school.

26.In response to Mr Harden’ evidence that he paid for sporting costs and fees, Mrs Dorsey stated that she also contributed to sporting costs including weekly fees and registration for sports. The Tribunal also notes that during the hearing Mr Harden pointed out that he and Mrs Dorsey had previously agreed that Mrs Dorsey would pay for school fees and Mr Harden would pay child support to her and he also noted that he paid for some school uniforms and a laptop computer for the child.

27.In response to the Tribunal’s question about whether there were periods in which the child was not in the care of either parent, Mrs Dorsey said that there may have been the odd night here or there where the child was with a friend or family member but this was fairly infrequent.

28.When asked whether she had any comment regarding the differences in her care calendar and Mr Harden’ care calendar, Mrs Dorsey said that Mr Harden’ care calendar was not as reliable as hers because her calendar was more detailed and included comprehensive notes about the child’s movements. She confirmed that it was recorded contemporaneously and said that she kept detailed records because she knew that Mr Harden would appeal any CSA decision that was not in his favour.

29.Mrs Dorsey also pointed to the record of text messages between herself and the child that she provided as evidence. She said that these messages often referred to ‘getting up’ or ‘breakfast’ or ‘dinner’ which showed that the child was at her house in her care at the time. During the hearing Mr Harden acknowledged that a lot of the information in the text messages was true but he said that the text messages don’t demonstrate exactly when Mrs Dorsey had overnight care and control of the child.

30.During the hearing Mrs Dorsey also advised that Mr Harden’s claim that the child was on a camping trip with him for a period in January is incorrect because she went earlier than originally planned to collect the child.

31.The Tribunal notes that at several times during the hearing both parents referred to periods in which they were overseas and the child remained living in their home without them. They both said that they checked on the child on a daily basis during these periods and continued to provide money and food for her and, on this basis, they both claimed that they had care of the child during the periods when they were overseas and the child remained living in their respective houses.

32.The CSA documents contain diary information from both parents and records of discussions between CSA and both parents regarding the care of the child over the period under review. The documents show that both parents provided inconsistent advice to CSA over time about the care arrangements. The following tables summarise the varying care information provided by both parties to CSA, as recorded in the CSA documents, between February 2019 and September 2019:

Date information provided to the Department	Information provided by Mr Harden
20 February 2019[3]	January 2019 – Mr Harden: 14 nights February 2019 – Mr Harden: 14 nights to date
15 April 2019[4]	March 2019 – Mr Harden: 16 nights April 2019 – Mr Harden: 14 nights to date
End April 2019[5]	April 2019 – Mr Harden: 100% care except for a few minor departures
21 May 2019[6]	March 2019 – Mr Harden: 5 consecutive nights from 25 March inclusive; April 2019 – Mr Harden: every night apart from three nights, two of which the child was with her paternal aunt and was therefore still in his care
Undated, sometime between May and July 2019[7]	April 2019 – Mr Harden 20 nights Currently  75% Mr Harden
31 July 2019[8]	April – Mr Harden 30 nights or 100% care May – Mr Harden 23 days or 75% care
26 August 2019[9]	January 2019 – Mr Harden: 14 nights February 2019 – Mr Harden: 21 nights March 2019 – Mr Harden: 19 nights incl. three nights with a friend April 2019 – Mr Harden: 25 nights and rest of care in April was housesitting therefore not with either parent May 2019 – Mr Harden: 16 nights and eight nights housesitting therefore not with either parent June 2019 – Mr Harden: 14 nights and 20 nights housesitting therefore not with either parent July 2019 – Mr Harden: 23 nights

[3] CSA documents page 24

[4] CSA documents pages 36 to 37

[5] CSA documents page 50 and 51

[6] CSA documents page 61

[7] CSA documents page 62

[8] CSA documents page 93

[9] CSA documents page 103 to 105

Date information provided to the Department	Information provided by Mrs Dorsey
27 April 2019[10]	March 2019 – Mr Harden: 13 nights April 2019 – Mr Harden: 17 nights
9 July 2019[11]	March – Mr Harden: 12 nights April – Mr Harden: 21 nights May 2019 – Mr Harden: 15 nights June 2019 – Mr Harden: 3 nights
26 July 2019[12]	June 2019 – Mr Harden 3 nights
7 September 2019[13]	January 2019 – Mr Harden: 11 nights February 2019 – Mr Harden:16 nights March 2019 – Mr Harden: 12 nights April 2019 – Mr Harden: 19 nights May 2019 – Mr Harden: 13 nights June 2019 – Mr Harden: 7 nights

[10] CSA documents pages 43 to 44

[11] CSA documents page 63

[12] CSA documents page 89

[13] CSA documents pages 128 to 133

33.The CSA documents also include the following additional evidence provided by Mr Harden:

·     third party statement from [Mr A] received on 5 September 2019 which lists a number of dates that [Mr A] has spent with Mr Harden and his family, including 17 January 2019 and 24 January 2019 and advises that he has seen the child at Mr Harden’s house over the period March to May 2019 early in the morning;[14]

·     undated third party statement from [Ms B], sister of Mr Harden, stating that Mr Harden has 80% care based on his calendar;[15]

·     undated third party statement from [Ms C], friend of Mr Harden and the children, stating that she witnessed the child in Mr Harden’s care every Friday night and Saturday morning as the child was involved in sport and also shared travel with Mr Harden and the child on Monday evenings. [Ms C] also advised that Mr Harden’s care of the child was in excess of 80% and that the child was housesitting for Mr Harden when he was away in August 2019 and stayed there every night;[16]

·     third party statement of 21 August 2019 from [Mr D], long standing friend of Mr Harden, stating that care, as reflected on Mr Harden’s care calendar is more like 80% care for Mr Harden and that care is not 50% shared care by both parents. He also advises that the child was with Mr Harden on a weekend camping trip from 17 January 2019 to 24 January 2019;[17]

·     undated third party statement from [Mr E] stating that the child was living with Mr Harden full time in April 2019 and that based on Mr Harden’s calendar, the child is in his care about 80% of the time;[18]

·     third party statement of 19 August 2019 from [Ms F] stating that the child was in Mr Harden’s care from 17 January 2019 to 24 January 2019 and that, consistent with his care calendar, the child is in his care 80% of the time. It also states that [Ms F] lived with Mr Harden from 4 April 2019 to 23 June 2019 and that during April the child was in Mr Harden’s care 100% of the time and then in May 2019 Mr Harden had 75% care of the child;[19]

·     undated third party statement from [Mr A] which states that [Mr A] attends Mr Harden’s house once a week for dinner and has done so for the past 178 months and on every occasion the child is always present and sleeps in her room after dinner. The statement says that the child is living with Mr Harden at a minimum of 75% to 80% of the time and often answers Mr Harden’s phone. It also states that he was with the child and Mr Harden from 17 January 2019 to 24 January 2019 on a camping trip and over the period March to May 2019 he has seen the child early in the mornings on many occasions at Mr Harden’s house when he was doing renovation work for Mr Harden;[20]

·     personal statement from Mr Harden dated 19 September 2019 stating that the text messages provided by Mrs Dorsey do not provide reflect actual care and that he has numerous text messages showing that the child has been at his house. It also states that the child was in his care on 15 April 2019.[21]

[14] CSA documents page 59

[15] CSA documents page 106

[16] CSA documents pages 108 to 109

[17] CSA documents page 110

[18] CSA documents page 112

[19] CSA documents page 113

[20] CSA documents pages 274 to 276

[21] CSA documents page 201

34.In response to this evidence, Mrs Dorsey said that it was unreliable because the third party statements were all similarly worded and did not provide unequivocal evidence about the care of the child during the period under review.

35.The CSA documents also include the following additional evidence provided by Mrs Dorsey:

·     personal statement from Mrs Dorsey of 25 April 2019 outlining care in March 2019;[22]

[22] CSA documents page 39

·     third party statement from [Ms G], friend of Mrs Dorsey of 26 April 2019 which does not provide specific dates of overnight care for either parent;[23]

[23] CSA documents page 41

·     third party statement from [Ms H], Mrs Dorsey’s sister, of 24 April 2019 stating that the child stays with her mother and father on a roughly equal basis and advising ad hoc occasions where the child has also stayed with her extended family;[24]

[24] CSA documents page 42

·     text messages provided by Mrs Dorsey which show ongoing general communication between Mrs Dorsey and the child;[25]

·     personal statement from Mrs Dorsey of 7 September 2019 setting out details of care from January 2019  to September 2019 including comments on Mr Harden’s evidence regarding care over this period, enclosing care calendars for the months of January 2019 to September 2019 and detailing additional care calendar supportive evidence regarding specific dates of care over this period;[26]

·     text messages between Mrs Dorsey and the child covering the period 1 January 2019 and 6 September 2019;[27]

·     annotated comment regarding evidence provided by Mr Harden;[28]

·     bank statements showing withdrawal transactions made on a card in the child’s name;[29]

·     receipts for chiropractic services provided to the child in January and September 2019;[30]

·     third party statement of 30 August 2019 from Mr Dorsey, Mrs Dorsey’s partner and the child’s step-father, which states that Mrs Dorsey and he have care of the child ‘most of the time’ but that Mrs Dorsey is happy to claim on 50% care to encourage a happy relationship with both parents;[31]

·     third party statement of 5 September 2019 from Ms [G], long standing friend of Mrs Dorsey, which restates that there has been a continued shared care arrangement of roughly 50-50% between Mrs Dorsey and Mr Harden since her previous statement dated 26 April 2019;[32]

·     third party statement of 8 September 2019 from [Ms I], friend of Mrs Dorsey, stating that she witnessed the child in the care of Mrs Dorsey on Friday 29 March 2019 and Saturday 30 March 2019;[33]

·     third party statement of 4 September 2019 from [Ms J], which states that the child is in Mrs Dorsey’s care over 50% of the time and that she regularly sees the child and/or her car at Mrs Dorsey’s house.[34]

[25] CSA documents pages 45 to 49

[26] CSA documents pages 122 to 149

[27] CSA documents pages 150 to 183

[28] CSA documents page 185

[29] CSA documents pages 187 to 192

[30] CSA documents pages 194 to 195

[31] CSA documents page 196

[32] CSA documents page 197

[33] CSA documents page 198

[34] CSA documents page 199

36.In response to this evidence, Mr Harden raised concerns about the accuracy and reliability of a number of these statements.

37.The Tribunal carefully considered all of the evidence provided by both Mr Harden and Mrs Dorsey. Both parents have provided evidence that they meet some of the day to day living expenses for the child and they have confirmed that they both have legal responsibility for the child.  On this basis the Tribunal accepts that during the period under review, both parents had financial and legal responsibility for the child.

38.In considering the weight to be given to third party statements, the Tribunal considered the relationship of the parties to the writers. For the Tribunal to attribute significant weight to a third party statement, the statement must be shown to be provided by an independent and impartial source. In this case the Tribunal has attributed limited weight to the third party statements of family members and friends given that, understandably, they may not be completely impartial in their statements.

39.The Tribunal considered all of the available evidence, including the various care calendars and additional evidence provided by both parties. In particular the Tribunal notes that there are substantial discrepancies between the care as recorded by Mr Harden and that recorded by Mrs Dorsey during the period under review. There were also discrepancies in the care arrangements that were reported by both parents to CSA during the period under review, as set out in paragraph 30 of these Reasons. Further, both parents confirmed that the child made her own decisions about where she stayed during the period under review and that the care was ad hoc depending on the wishes of the child at the time. Consistent with this, neither Mr Harden’s care calendars nor Mrs Dorsey’s care calendars show that there was a clear pattern of care from 1 January 2019 or from 25 March 2019. In addition, the Tribunal considers that the third party statements provided by Mr Harden or Mrs Dorsey and the text messages provided by Mrs Dorsey do not provide conclusive evidence of any ongoing pattern of care for the child during the period under review.

40.Accordingly, the Tribunal is satisfied that there is no compelling evidence of an identifiable pattern of care from 1 January 2019 to 25 July 2019[35] that differed from the existing care arrangements as recorded by CSA. As such the Tribunal determines that there was no change in care arrangements from 1 January 2019 or from 25 March 2019.

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

[35] 25 July 2019 was the date the original decision was made by CSA and therefore the date up to which the Tribunal is prepared to consider evidence of the actual care that occurred.

41.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.

42.The Tribunal is satisfied that a previous care determination was made under section 50 of the Act such that Mr Harden had 66% care of the child and Mrs Dorsey had 34% care of the child from 1 January 2017. Therefore paragraph 54F(1)(a) of the Act is satisfied. Mr Harden notified CSA on 15 April 2019 to advise that the care that was taking place for each child did not correspond with the existing percentage of care as determined from 25 March 2019.  Therefore paragraph 54F(1)(c) of the Act is satisfied.

43.The Act also requires that there would be a change in the cost percentage if another percentage of care were determined for Mr Harden under section 50 of the Act. Section 50 of the Act provides that if the Tribunal revokes a determination and is satisfied that a party has had, or is likely to have, a pattern of care of a child, the Tribunal must determine the care during the care period. “Actual care” may be worked out based on the number of nights the child was or will be in the care of the person (subsection 54A(1) of the Act).

44.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, if a change of care occurred, an appropriate care period would be the 12-month period from 25 March 2019, being the date on which Mr Harden stated that a change to care arrangements had occurred.

45.However, the Tribunal has determined that there was no change in care arrangements from 1 January 2019 or from 25 March 2019. While there may have been some variations in care which were decided by the child on an ad hoc basis, there is no consistent or agreed evidence before the Tribunal proving that there was an identifiable new pattern of care from either 1 January 2019 or from 25 March 2019.  Therefore the Tribunal is not satisfied that from either 1 January 2019 or 25 March 2019 there was a change in the care which constitutes a change to the pattern of care as required under section 50 of the Act. It therefore follows that the Tribunal finds that the care for Mr Harden and Mrs Dorsey from both 1 January 2019 and 25 March 2019 accords with the determination of care already used by CSA.

46.As the Tribunal has concluded that the care percentages from 1 January 2019 and from 25 March 2019 were the same as Mr Harden and Mrs Dorsey’s care percentages from 1 January 2017, paragraph 54F(1)(d) of the Act is not satisfied. In the circumstances the Tribunal cannot revoke the existing determinations of percentages of care as there was no change in the care percentages.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides to refuse to revoke the determination of care. This means that Mr Harden’s percentage of care of 66% for the child and Mrs Dorsey’s percentage of care of 34% for the child will remain in place.