Herreira and Aguilar (Child support)

[2023] AATA 2658

Herreira and Aguilar (Child support) [2023] AATA 2658 (30 June 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/CC025900

APPLICANT:  Ms Herreira

OTHER PARTIES:  Child Support Registrar

Mr Aguilar

TRIBUNAL:Member P Jensen

DECISION DATE:  30 June 2023

DECISION:

The care decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – both parents provided no care – decision under review affirmed

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

1. Ms Herreira and Mr Aguilar are the parents of [Child 1] who was born in 2005. A child support case ended on 19 December 2020 when Services Australia – Child Support (Child Support) concluded that neither parent was providing care for [Child 1] and she was residing with her boyfriend, [Mr A], and his parents.

2. Another child support case was registered from 23 September 2021. Ms Herreira was recorded as providing 100% care. Child Support concluded that [Child 1] started residing with her maternal grandmother on 29 March 2022. Ms Herreira and Mr Aguilar were recorded as providing 0% care from 29 March 2022 and the child support case ended from that date.

3. Another child support case was registered from 20 July 2022. Ms Herreira was recorded as providing 100% care. On 21 October 2022, Mr Aguilar informed Child Support that a change in care occurred on 30 September 2022 and neither parent provided care from that date. On 10 January 2023 an original decision-maker decided to record each parent as providing 0% care from 30 September 2022 (the care decision). Child Support decided to end the child support case from 30 September 2022.

4. Ms Herreira promptly objected to the care decision. An objections officer disallowed her objection. On 31 March 2023, Ms Herreira applied to the Tribunal for further review. I heard the matter on 30 June 2023. Ms Herreira and Mr Aguilar gave sworn evidence via MS Teams.

5. On the day that Ms Herreira applied to the Tribunal for review of the care decision, she also applied for review of an objections officer’s decision to disallow her objection to an original decision to credit a payment by Mr Aguilar of $100.08 as a prescribed non-agency payment.

6. On 9 May 2023 the Tribunal Registry sent an email to Ms Herreira which included the following (with a typographical error in one of the application numbers):

   Can you please confirm that you still wish to proceed with your following applications:

   ·2023/SC025552 (Non Agency Payment decision)

   ·2023/SC025900 (Care Percentage decision)

   Can you also please confirm you have received 2 separate bundles of documents from Child Support? These would have been sent to you [by] CS by registered post.

   The papers for 2023/SC025552 was sent to you back in late February and the papers for 2023/SC025900 was delivered to your address yesterday.

7. On 9 May 2023, Ms Herreira replied:

   Yes I would like to proceed with both and I have received both packs.

   I also uploaded extra information to the portal for the Non Agency Payment case. I will be doing the same for the care percentage decision.

8. According to the Registry’s records, two letters were sent to Ms Herreira on 5 June 2023. A letter was posted to her informing her that 2023/SC025552 would be heard at 9:00 am on 30 June 2023 and a letter was emailed to her informing her that 2023/CC025900 would be heard at 9:00 am on 30 June 2023.

9. The hearings commenced as scheduled. Ms Herreira said she only received one of the Registry’s letters dated 5 June 2023 and she had believed that the only decision being reviewed on 30 June 2023 would be the prescribed non-agency payment decision. She said she had believed that the care decision would be reviewed at a later date.

10. Having considered Ms Herreira’s oral evidence and the Registry’s records, I am satisfied that the Registry sent both letters to Ms Herreira and she received them in the ordinary course. I am also satisfied that she genuinely believed that the only decision being reviewed on 30 June 2023 would be the prescribed non-agency payment decision.

11. Initially, Ms Herreira was agreeable to proceeding with a review of both decisions. I started with the care decision. Ms Herreira said that her application for review of the care decision was about the process which led to the making of the decision. That statement was consistent with what she had written in her application for review by the Tribunal:

    This decision was made without including me in the decision making process. I was not awarded the right to reply, nor was any form of contact made or attempted. I believe the CSA have confused this application, with a previous application, because when I called on the 11th Jan 23 to find out what the 10th Jan 23 letter was all about, the person I spoke to was extremely apologetic and advised me that they made a mistake, but the only thing I can do is object, which is what I did, however as I have been inundated with Objections / Appeals / Submissions / Change of Assessments from [Mr Aguilar], I have had to respond to what I could as I also have 2 other children and need to sleep.

12. I explained that I was not reviewing Child Support’s delivery of services; I was reviewing the care decision. I asked Ms Herreira about the care, if any, that she provided from 30 September 2022. She said [Child 1] had remained in her care but she did not have any (documentary) evidence of the care that she provided. She then stated that she had not been given an opportunity to provide any evidence. I asked her whether she had provided any overnight care from 30 September 2022. She said she was unable to answer that question because she had not prepared for a hearing concerning the care decision. I asked her whether she had kept records of her overnight care. She said she had not. However, she said that she might be able to provide evidence such as text messages and emails that might indicate her provision of care. She effectively applied to have the matter adjourned. Mr Aguilar opposed the adjournment application. In his opinion, Ms Herreira had needlessly protracted the process in the past and she was attempting to continue to do so.

13. I returned to Ms Herreira’s statement that she had not been given an opportunity to provide any documentary evidence. I noted that Child Support made the care decision on 10 January 2023. She contacted Child Support on 11 January 2023 and objected to the decision. Child Support’s file note of the conversation includes the following:

    *[Ms Herreira] has provided the following grounds for her objection:

    [Child 1] is still in my care. She comes and goes as she likes because of her age, but I still provide care (emotional, financial, parental) for her.

    […]

    *[Ms Herreira] has stated she will provide the following evidence by 08/02/2023:

    - Details of care arrangements for [Child 1] and the date the arrangement commenced

    - Summary of nights you have had care of [Child 1] from 30 September 2022.

    - Any other evidence to support your claims for the care you have had [of] [Child 1].

    Suitable evidence may include:

    1. Documentary evidence (diary or calendar entries) recording the actual care of the child/ren;

    2. Text/email exchanges between the parties showing dates e.g. where messages show pick-up/drop-off content when proving care.

    3. Statements from third parties, regular extra-curricular activities, day-care or school;

    […]

14. On 11 January 2023, Child Support sent a letter to Ms Herreira which reminded her of the evidence that she had stated she would provide and the list of other evidence that she could provide. At the Tribunal hearing, Ms Herreira said she told Child Support at the time that she would not be providing that evidence because she had not been given an opportunity to provide it prior to the care decision being made on 10 January 2023. It transpired that she did not provide any evidence in support of her objection to the care decision.

15. It is worth recounting the chronology from an earlier date. According to Child Support’s records, it contacted her on 8 November 2022 about the reported change in care on 30 September 2022 and she replied that she would provide evidence of her care of [Child 1] which would address that reported change in care as well as an earlier reported change in care that was in dispute. She subsequently provided evidence but it did not address the reported change in care from 30 September 2022. An original decision‑maker made the care decision. Ms Herreira promptly objected to that decision but, on her most recent account of events, she refused to provide evidence in support of her objection. An objections officer disallowed her objection. She promptly applied to the Tribunal for further review but did not provide any evidence in support of her application for review. Mr Aguilar provided the Tribunal with further evidence in support of the care decision. That documentation was sent to Ms Herreira by express post on 20 June 2023. At the hearing, Ms Herreira confirmed that she had received that documentation. It included Mr Aguilar’s written submissions:

    I wish to provide some extra evidence for consideration for the hearing that is scheduled for 30 June 2021 [sic], review number 2023/CC025900.

    […]

    It is clear from the CSA notes that CSA made efforts to have [Ms Herreira] provide evidence for her disputed care assertion, and [Ms Herreira] did not take those opportunities. […]

16. I considered adjourning the matter and giving Ms Herreira another opportunity to provide documentary evidence in support of her application for review. Mr Aguilar reiterated his opposition to the adjournment application. I noted that the review of the care decision and the review of the prescribed non-agency payment decision were potentially related, and the parties could apply for another full merit review of my care decision but not my prescribed non‑agency payment decision. Mr Aguilar acknowledged that point but maintained his opposition to Ms Herreira’s adjournment application. The prescribed non-agency payment decision concerned the relevantly small sum of $100.08. The chronology of events since 8 November 2022 shows that Ms Herreira was given ample opportunity to provide evidence of any care that she provided from 30 September 2022. The effect of her evidence during the hearing was that when Child Support asked her to provide evidence in support of her objection to the care decision, she took a perverse position in response to some perceived procedural irregularity and refused to provide any evidence. Of course, another possible inference that could be drawn from her failure to provide any evidence was that she had not provided any care. After considering the Tribunal’s objectives which are listed in section 2A of the Administrative Appeals Tribunal Act 1975, I decided to refuse Ms Herreira’s application for an adjournment.

17. Ms Herreira maintained that she continued to provide care from 30 September 2022 but she was unable to provide details of that care and she did not provide any corroborative evidence of any such care. Mr Aguilar stated that he spent some time with [Child 1] shortly before 30 September 2022 and she informed him that she was no longer staying at Ms Herreira’s home. He said he spoke to [Mr A’s] parents about two weeks later and they confirmed that [Child 1] was staying with them. He provided documentary evidence in support of his account of events. The most probative document was an undated text message from [Mr A] which Mr Aguilar provided to Child Support on 16 December 2022. The text message included the following: “[Child 1] moved back in with my family and I on the 30th of September.” Viewing the evidence as a whole, I am satisfied that [Child 1] was living with [Mr A] and his family (again) from 30 September 2022 and neither parent was providing care from 30 September 2022.

18. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (the Act). Relevantly, when a parent “has had, or is likely to have, no pattern of care” during the appropriate care period, the parent is to be recorded as providing 0% care: section 49 of the Act. Neither parent was providing a pattern of care from 30 September 2022. The decision to record each parent as providing 0% care from 30 September 2022 was the correct decision.

DECISION

The care decision under review is affirmed.