JPFR and Child Support Registrar (Child support second review)
[2021] AATA 5091
•22 December 2021
JPFR and Child Support Registrar (Child support second review) [2021] AATA 5091 (22 December 2021)
Division:GENERAL DIVISION
File Number(s): 2020/5554
Re:JPFR
APPLICANT
Child Support RegistrarAnd
RESPONDENT
AndVXPT
OTHER PARTY
DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date:22 December 2021
Place:Melbourne
The decision under review is affirmed.
..............................[SGD]..........................................
The Hon. Matthew Groom, Senior Member
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.
CATCHWORDS
CHILD SUPPORT – percentage of care – decision under review affirmed.
LEGISLATION
Child Support (Assessment) Act 1989
CASES
Drake and Minister for Immigration and Ethnic Affairs (No.2), Re (1979) 2 ALD 634
P v Child Support Registrar [2012] FCA 1398
SECONDARY MATERIALS
Guides to Social Policy: Child Support Guide
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
22 December 2021
INTRODUCTION
This matter involves a review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 27 August 2020 which affirmed the decision of the objections officer dated 14 July 2020 refusing a change in care.
BACKGROUND
The applicant (the father) and the other party (the mother) at the parents of M (the child) was born in April 2002 and is now aged 19.
From 1 July 2008, the child support assessment was calculated on the basis that the other party had 100% care of the child and the applicant had 0% care (the existing determination). That determination was in place despite there being a court order which was made on 30 March 2011 stating that the applicant was to have care of the child every second weekend and for two weeks during the Christmas holidays.
On 16 February 2017, the applicant notified Child Support (the Agency) of a change in care claiming that the pattern of care was that over the course of a year he would provide 64 nights of care (17%) and the other party would provide 301 nights of care (83%).
For reasons which are not clear to the Tribunal the Agency did not follow up the claimed change in care until April 2020.
On or around 29 and 30 April 2020, the mother was contacted by an employee of the Agency by telephone in relation to the claimed change in care. The mother indicated that the father had some care of the child from 16 February 2017 but claimed that the level of care was 59 nights per year comprising of two nights a fortnight and one week in the Christmas holidays for the father with the balance being with the mother.
On 30 April 2020, a case officer accepted the father’s claim and determined that there had been a change in care consistent with the notification provided by the father (the original decision). The original decision resulted in a significant overpayment of $17,000 which the Tribunal accepts was contributed to by the significant delay by the Agency in responding to the claimed change in care.
On 13 May 2020, the mother objected to the original decision claiming that she had only accepted the proposed change in care due to safety concerns. In her objection the mother claimed to have had 100% care of the child from 2016 and that the child had not stayed with the father due to issues with the father’s girlfriend and also practical difficulties with the father collecting the child from the mother due to travel distance. The mother claimed that the child spent some time in the father’s care but that it was not consistent and there was not an established care pattern.
On or around 1 June 2020, in response to the mother’s claim the father provided a statement to the Agency claiming that he had care of the child every second weekend and Easter and Christmas holidays since 2010.
On 14 July 2020, an objections officer allowed the objection and determined that there had been no change in care and as such the existing care determination remained in place (the objection decision).
On 27 July 2020, the applicant lodged an application for review with the AAT1.
On 27 August 2020, the AAT1 decided to affirm the objection decision (the decision under review). In making its decision the AAT1 decided that there was no agreement as to the care of the child since February 2017 and that neither party kept reliable records of the care. The AAT1 also found that various documents that had been produced in support of the applicant’s claim had been created for the purpose of the care application and were not reliable to show when care had occurred or the frequency of the care. The AAT1 also found that the various statements that have been provided on behalf of the other party from a child and third parties were non-specific and also not reliable evidence of the care arrangements.
On 12 September 2020, the applicant made application for a review of the AAT1 decision and that is the matter before this Tribunal.
RELEVANT LEGISLATIVE PROVISIONS AND POLICY
The relevant legislative provisions are set out in Division 4 of the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act).[1]
[1] The Tribunal accepts the respondent's contention that as both the parties asserted change of care in February 2017, the pre-May 2018 version of the Assessment Act applies.
In considering the issues for determination of the Tribunal has also had regard to the Child Support Guide. The Tribunal accepts that it is appropriate to use the policy guidance unless there are cogent reasons not to do so.[2] The Tribunal is satisfied that there are no such reasons in the present matter.
[2] See P v Child Support Registrar [2012] FCA 1398 and also Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634.
ISSUE
The issues for determination by the Tribunal are:
(a)whether the Tribunal is satisfied that the existing care determination should be revoked pursuant to sections 54F, 54G or 54H of the Assessment Act;
(b)if the Tribunal is so satisfied, then what percentage of care should be attributed to each of the applicant and the other party in the new care percentage determination under sections 49 or 50 of the Assessment Act; and
(c)what is the date of effect of the new determination?
EVIDENCE AND CONSIDERATION
Documents provided by the father in support of his contentions include the following:
(a)an email submission received by the Tribunal on 1 December 2020 attaching:
(i)a care calendar 2017-2020
(ii)Orders of a Federal Magistrate dated 30 March 2011
(iii)‘Other Documents’ consisting photographs, booking slips and text messages;
(iv)‘References’ consisting an undated statement of SB, undated statement of MW and statement of KB dated September 2020; and
(v)a table prepared by the father of ‘statements agreed to by M’.
Documents provide by the mother in support of her contentions included the following:
(a)email submissions received by the Tribunal on 16 November 2020 and 9, 10, 11 and 12 December 2020 attaching:
(i)2017 & 2019 work and study calendars
(ii)an undated statement of the mother
(iii)Affidavit of the mother lodged in the federal court sworn in November 2020
(iv)Federal court orders dated 25 November 2020
(v)Email concerning child’s phone from Amaysim Mobile
(vi)Photographs of the Compass platform
(vii)Email from SA dated September (no year)
(viii)Email from JV dated September (no year)
(ix)Statement of CH dated December 2020
(x)Medical photographs
(xi)Statement of RB dated December 2020
(xii)The mother’s ‘response to ST statement’
(xiii)Statement of SC dated December 2020
(xiv)Scans of social media screenshots with handwritten notes
(xv)Screenshots of text messages
(xvi)Screenshots of social media photographs with handwritten notes; and
(xvii)Screenshots of social media photographs with and without handwritten notes.
The Tribunal also had the benefit of the T Documents lodged by the respondent.
In addition, the Tribunal received oral evidence from both the father and the mother.
In his direct evidence, the father maintained his position that as at the date of notification on 16 February 2017 he had assumed an established pattern of care for M broadly in line with the 2011 court orders which amounted to 64 nights of care over a 12-month period. The father told the Tribunal that he had previously made contact with the Agency to advise of a change in care arrangements but that the Agency did not act on those notifications. There is no independent evidence of those earlier notifications before the Tribunal.
The father told the Tribunal that he had care of M every second weekend as well as time during the Easter and Christmas school holidays. He told the Tribunal that every second weekend he would generally pick M up on Friday after school and drop him off on Sunday. In pressing his contentions, the father relied heavily on a series of colour coded care calendar entries that he produced for the purpose of the proceedings. Those entries relate to the period between 2017 and 2020. The father conceded that the calendar entries had been produced retrospectively based on texts and photographs and a driving logbook. In addition, the father produced a number of third-party statements together with various photos and screen shots of text messages in support of his contentions.
When questioned by the respondent’s legal representative the father conceded that there were some weekends that he didn’t have care of M but that the general pattern was every second weekend. He told the Tribunal that the general expectation was that he would have care of M every second weekend but that occasionally he would send a text advising of a different arrangement. The father also conceded that on occasions M would stay with his grandparents on a Friday night, particularly if he was working, however, he could not remember in which years that arrangement was in place. The father told the Tribunal that he consistently had care of M for the Easter period for around 5 nights. He also told the Tribunal that he would always have care of M for the Christmas/New Year period. He told the Tribunal that he would pick M up on Christmas day and then drop him back between the 3rd and 5th of January.
The mother disputes the father’s contention that there was an established change in the pattern of care as at February 2017. The mother told the Tribunal that while she acknowledges that the father had some care of M during the relevant period she disputes that there was an established pattern of that care. The mother told the Tribunal that she could not put a percentage figure on the level of care as the care was irregular and sporadic. The mother told the Tribunal that there was not a general expectation regarding the pattern of care but rather any time M spent with his father was by arrangement. The mother referred the Tribunal to a number of text message screen shots in support of this contention. The mother also referred the Tribunal to a number of photos that she claims demonstrate the unreliability of the father’s calendar entries. The mother told the Tribunal that the calendar entries are inaccurate. The mother made reference in particular to photos that purports to be of M with her brother during Easter in April 2017 which she claims is inconsistent with the father’s calendar entries. The mother also told the Tribunal that a number of Facebook and Instagram screenshots are inconsistent with the care the father claims to have had of M during the relevant period. The mother also made reference to a series of school calendar and CMFEU calendar entries that she claims are inconsistent with the father’s claimed care dates as noted in his calendar entries. When asked why she had previously told the Agency that the father had care of M for 59 nights in 2017 the mother told the Tribunal that she is not sure where that figure came from but that at the time she was just seeking to agree. The mother told the Tribunal that she does not dispute that the father had some care of M in the period from February 2017 but that it was not regular, it was not every second weekend, it was not every Easter and it was not every Christmas. The mother told the Tribunal “there was no pattern of care”. The mother disputes that the care of M at the time was consistent with the 2011 court orders. She told the Tribunal that the father’s “work has always taken priority”.
Having heard the direct evidence of the mother and the father and also considered the documentary evidence before it the Tribunal is not satisfied that there was a change in care in February 2017, or in the period following, that justifies a decision to revoke the existing determination. The difficulty in this case is the absence of any clear reliable independent evidence that demonstrates of the level of care. This is further compounded by the passage of time. The Tribunal is satisfied that the care arrangements did not follow the 2011 court orders with any regularity. More specifically, the Tribunal does not accept that the calendar entries that have been produced by the father are a reliable record of the care arrangements for M. Given that the calendar entries were only produced for the purpose of these proceedings the Tribunal does not consider them to be a reliable record of the care arrangements at the time. In addition, the Tribunal accepts that the photographic evidence produced by the mother further undermines the reliability of the calendar entries. While the Tribunal accepts that the father has produced various photos and text screen shots in support of his claim to have had care of M during the relevant period, the Tribunal does not accept that those documents support a conclusion that the father had care of M for at least 52 days in the 12 months from 16 February 2017 nor that there was an identifiable change in the pattern of care. The Tribunal acknowledges that both parties have also produced a number of purported statements by third parties in support of their respective contentions. Considered as a whole the third-party statements give significantly differing accounts of the care arrangements. A number of the statements also include apparent inconsistencies. Some of the statements are unsigned or undated. In the circumstances, the Tribunal is not inclined to give such statements any weight in the absence of hearing directly from those who have purportedly made the statements. The father has also produced a document that purports to be a table of statements agreed to by M. The mother disputes the reliability of the document on the basis that she believes that M was pressured to provide particular answers in support of the father’s case. While the Tribunal is not satisfied that M was pressured in the manner suggested, nonetheless, in the absence of hearing from M directly the Tribunal is again not inclined to place any weight on the document.
On the basis of the evidence before it, the Tribunal is not satisfied that the father had care of M for at least 52 days in the 12 months from 16 February 2017 nor is the Tribunal satisfied that there was an identifiable change in the pattern of care at the date of notification or in the 12 months following.
DECISION
The decision under review is affirmed.
I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of The Hon. Matthew Groom, Senior Member
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Associate
Dated: 22 December 2021
Date(s) of hearing: 11 June 2021 Applicant: By telephone Advocate for the Respondent: K. Whittemore Solicitors for the Respondent: Sparke Helmore Other Party: By telephone
Key Legal Topics
Areas of Law
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Administrative Law
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Family Law
Legal Concepts
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Appeal
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Procedural Fairness
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Statutory Construction
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