Haslam and Child Support Registrar (Child support)

[2018] AATA 952

Haslam and Child Support Registrar (Child support) [2018] AATA 952 (8 March 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/BC013303

APPLICANT:  Mr Haslam

OTHER PARTY:  Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  8 March 2018

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides to record Mr Haslam as providing 14% care and [Ms A] as providing 86% care to [Child 1] from 5 October 2017.

CATCHWORDS

Child Support – Care percentages – Determination of the likely pattern of care – Existing care percentage determinations revoked - 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. Mr Haslam and [Ms A] are the parents of [Child 1]. A child support case was registered with the Department of Humans Services – Child Support (“the CSA”) in 2015. From 23 September 2016 the CSA recorded Mr Haslam as providing 28% care to [Child 1]. [Ms A] has always been recorded as providing the balance of care and, for convenience, I will only refer to Mr Haslam’s care.

2. On 5 October 2017, [Ms A] contacted the CSA about a change in care. The CSA relevantly noted:

   Mr Haslam only having [Child 1] approx. 1 night per fortnight. This can be any day of the week it all depends on Mr Haslam.

3. The CSA made a number of unsuccessful attempts to contact Mr Haslam by phone. It wrote to him and he did not respond to its letter. The CSA then decided to record Mr Haslam as providing 7% care from 5 October 2017.

4. Mr Haslam promptly objected to the CSA’s decision. He said that, on average, he provided at least one night of care per week. The CSA made a number of unsuccessful attempts to contact [Ms A] by phone. It wrote to her and she did not respond to its letter. An objections officer then decided to dismiss Mr Haslam’s objection.

5. Mr Haslam promptly sought further review by the Tribunal. The Tribunal registry wrote to [Ms A] and invited her to apply to be made a party to Mr Haslam’s application for further review. She did not make that application. I heard the matter on 8 March 2018. Mr Haslam attended the hearing in person.

6. Mr Haslam stated that his extended family is in Sydney and he lives in Brisbane for the sole purpose of spending time with [Child 1]. In response to my questions he stated that, as at October 2017, he had been providing, and had expected to continue to provide, an average of at least one night of care per week. He said it would be fair to record him as providing one night of care per week.

7. Mr Haslam provided a number of text messages in support of his oral evidence. He agreed that they demonstrated that during November 2017 he provided care on 1, 14 and 29 November 2017. That evidence suggests that he provided approximately one night of care per fortnight. Mr Haslam said that he did not keep records of his care of [Child 1] and he did not have text messages in respect of every night of care that he provided.

8. Mr Haslam provided a letter from his mother, Mrs Haslam, who stated that Mr Haslam provided one to two nights of care per week. Mr Haslam said his mother lives in Sydney. She is obviously not well placed to give direct evidence of Mr Haslam’s provision of care in Brisbane.

9. Mr Haslam provided a statutory declaration from [a witness] who generally supported Mr Haslam’s account of his provision of care. The declaration does not disclose the source of [witness’] knowledge.

10. Mr Haslam provided documentary evidence that he and [Child 1] travelled to Sydney on 14 December 2016 and returned to Brisbane on 18 December, and he and [Child 1] travelled to Sydney on 17 January 2017 and returned to Brisbane on 22 January 2017. He said that in addition to the blocks of care that he provided in Sydney, he also provided a block of four nights of care in Brisbane during the same Christmas holidays.

11. In summary, Mr Haslam gave sworn oral evidence of his provision of care, and he provided further evidence that, to a very limited degree, supported his oral evidence, and he made himself available to be questioned by the Tribunal. Mr Haslam’s willingness to provide evidence can be contrasted with [Ms A’s] apparent unwillingness to do likewise. She made a statement to the CSA concerning Mr Haslam’s provision of care. She did not provide any evidence in support of her statement. She did not respond to the CSA’s attempts to speak to her further about Mr Haslam’s provision of care. She elected not to be made a party to the proceedings before the Tribunal. On balance, I consider Mr Haslam’s evidence concerning his general pattern of care to be the more reliable evidence on point. I find that, as at October 2017, he was providing one night of care per week. He did not dispute that the change in care occurred on 5 October 2017. He will be recorded as providing 14% care from 5 October 2017 pursuant to sections 54H, 50, 54B and 54D of the Child Support (Assessment) Act 1989.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides to record Mr Haslam as providing 14% care and [Ms A] as providing 86% care to [Child 1] from 5 October 2017.