Katona and Child Support Registrar (Child support)

[2020] AATA 5133

Katona and Child Support Registrar (Child support) [2020] AATA 5133 (25 September 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2020/BC019539 & 2020/BC019474

APPLICANT:  Mr Katona

OTHER PARTY:  Child Support Registrar

TRIBUNAL:Member P Jensen

DATE OF DECISIONS:                   25 September 2020

DECISIONS:

The decisions under review are affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there were changes to the likely patterns of care – existing percentage of care determinations revoked and new determinations made – decisions 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 DECISIONS

1. Mr Katona and [Ms A] are the parents of four children, the youngest two of whom are [Child 1] who was born in 2003 and [Child 2] who was born in 2005. A child support case was registered in 2014 with what is commonly called the Child Support Agency, or CSA. From 13 February 2016 the CSA recorded Mr Katona as providing 97% care and [Ms A] as providing 3% care to [Child 1] and [Child 2].

2. On 9 March 2018, [Ms A] informed Centrelink that she had been providing 100% care to [Child 1] from 9 February 2018. On 28 September 2018, Centrelink, and in turn the CSA, decided to record Mr Katona as providing 0% care and [Ms A] as providing 100% care to [Child 1] with effect from 9 February 2018. On 8 April 2020, Mr Katona objected to that decision. An objections officer disallowed his objection. Mr Katona promptly applied to the Tribunal for further review.

3. Meanwhile, on 2 July 2019, [Ms A] informed Centrelink that she had been providing 100% care to [Child 2] from 1 January 2019. On 21 December 2019, Centrelink, and in turn the CSA, decided to record Mr Katona as providing 0% care and [Ms A] as providing 100% care to [Child 2] with effect from 16 July 2019. On 8 April 2020, Mr Katona objected to that decision. An objections officer disallowed his objection. Mr Katona promptly applied to the Tribunal for further review.

4. [Ms A] was not automatically a party to either proceedings before the Tribunal. She was invited to apply to be made a party, but she did not make those applications. I heard the matters on 25 September 2020. Mr Katona gave sworn evidence by conference phone.

[Child 1]

1. As noted above, [Ms A] informed Centrelink on 9 March 2018 that she had been providing 100% care to [Child 1] since 9 February 2018. On 20 April 2018, Mr Katona informed the CSA that he was still providing 100% care. He said he could provide letters from [Child 1]’s school to confirm that he was still providing full-time care. He did not provide any such evidence.

2. [Ms A] provided evidence in support of her account of events. [Ms A]’s mother made a written statement on 26 April 2018. She said that [Child 1] was living with [Ms A], and had been doing so since the beginning of February 2018. She said she was “in touch with [Ms A] and [Child 1] daily and have visited them often.”

3. [Senior Constable B] made a written statement on 26 April 2018 which included the following:

   I run a youth program that [Child 1] … is a part of. I am aware that [Child 1] is living with her mother [at a particular address] and has been since the 9th of February 2018. I collect [Child 1] for my program from this address.

4. At the hearing, Mr Katona said that [Child 1] usually stayed overnight at his house. He said that when [Child 1] stayed overnight at [Ms A]’s house, it was only for the night, and she returned to his house in the morning. Mr Katona confirmed that [Child 1] had been involved in the youth program. He said [Child 1] was always collected from his house when she was attending the youth program. I referred Mr Katona to [Senior Constable B]’s statement that she collected [Child 1] from [Ms A]’s house. Mr Katona stated: “That is totally incorrect.”

5. [Ms A]’s sister, [Ms C], made a written statement on 26 August 2018. She said that [Ms A] had been providing full-time care to [Child 1] since February 2018.

6. On 2 February 2020, Mr Katona completed a form in which he indicated that a care arrangement had been in place since 3 March 2010, and he had been providing 50% care to [Child 1] since that date. Later in the same document he stated that “they [i.e. [Child 1] and [Child 2]] stay with me at least 75% of time.” At the hearing he said he had misunderstood the questions in the form and his answers were consequently incorrect.  

7. On 8 April 2020 he stated that he had been providing 100% care “since day dot”. He also stated that [Child 1] “has returned to me on and off over the last couple of years” and each parent should be recorded as providing 50% care.

8. At the hearing, Mr Katona stated, in effect, that in and around February 2018, he continued to provide the vast majority of overnight care and he continued to pay all of [Child 1]’s expenses. To the extent that [Ms A] provided any care, it was confined to occasional overnight care, and [Child 1] would return to Mr Katona’s care the following morning.

9. One of the difficulties in this case, and in the case concerning the care of [Child 2], is Mr Katona’s delay in disputing the original decision. Nevertheless, I am still required to make findings of fact on the balance of probabilities. [Ms A]’s account of events was corroborated by two family members and, importantly, an unrelated police officer. Mr Katona stated that [Senior Constable B]’s account of events was totally incorrect. I consider it unlikely that her statement that she collected [Child 1] from [Ms A]’s address was incorrect. Rather, I consider it likely that Mr Katona’s statement that [Child 1] was always collected from his house to be incorrect. While it is, of itself, a relatively minor matter, it nevertheless suggests that Mr Katona is not a reliable witness. I consider [Ms A]’s evidence, which is supported by the witnesses referred to above, to be the more reliable evidence, and I accept her evidence that a new pattern of care commenced on 9 February 2018, at which point she started providing full-time care.

10. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (“the Act”). [Ms A] promptly informed Centrelink of the change in care. The decision to record her as providing full-time care from 9 February 2020 was the preferable decision and will be affirmed: sections 49, 50, 54B and 54F of the Act.

[Child 2]

1. [Ms A] informed Centrelink on 2 July 2019 that she had been providing full-time care to [Child 2] since 1 January 2019. She subsequently provided evidence in support of that statement. [Ms A]’s mother made a written statement on 7 August 2019 in which she stated that [Child 2] was living with [Ms A] and [Child 1] and “has been living with them all year.” [Ms D] made a written statement on 29 August 2019 in which she stated:

   My name is [Ms D]. I am [Ms A] & [Child 2]’s neighbour for 2½ years. I am righting [sic] to confirm that [Child 2] has lived with his mother since January 2019.

2. [Ms E], the principal of [School 1], provided a Verification of Enrolment statement on 29 August 2019 which stated that [Child 2] was enrolled in that school on 16 July 2019. A year later she provided another Verification of Enrolment form. [Child 2]’s enrolment ceased on 7 February 2020 and:

   Parent/Guardians Listed on                   [Ms A] (Residing Parent)

   Enrolment:  Mr Katona (Non Residing Parent)

3. In December 2019 the decision was made to record Mr Katona as providing 0% care and [Ms A] as providing 100% care to [Child 2] with effect from 16 July 2019

4. On 2 February 2020, Mr Katona completed a form in which he indicated that a care arrangement had been in place since 3 March 2010, and he had been providing 50% care to [Child 2] since that date. Later in the same document he stated that “they [i.e. [Child 1] and [Child 2]] stay with me at least 75% of time.” At the hearing he said he had misunderstood the questions in the form and his answers were consequently incorrect.

5. On 8 April 2020, Mr Katona stated that he had been providing 100% care “since day dot”. The CSA also noted him as saying:

   [Child 2] only went to [Ms A]’s for a couple of nights but he then returned to me and has only stayed with [Ms A] a couple of nights since then.

6. On 11 June 2020 the CSA spoke to Mr Katona again and noted:

   [Mr Katona] advised [Child 2] is with him full time.

   I asked from when this has been explaining to [Mr Katona] that we have had [Child 2] recorded in his mother’s 100% care since July 2019.

   [Mr Katona] advised that [Child 2] went to year 8 for 2-3 days but left school

   [Mr Katona] advised he was involved with a gang. He advised he would go on a bender and go back and for her form [sic, go back and forth from?] his mother house and his house. He got in trouble with the police and youth Justice, and was making ICE last year.

   He advised [Child 2] has been with him since around 14 November 2019. He advised he has gone to mum’s once in the last 4 months.

1. The CSA had further conversations with both parents on 11 June 2020 and noted:

   I advised [Mr Katona] that I have spoken to [Ms A] and she has advised the care level for [Child 2] would be 50/50 care. I explained she has advised that she is having reg overnight care of [Child 2].

   I advised if he agrees with this we could look at a care change for [Child 2] to 50/50.

   I advised if not then we would wait from them both to provide evidence and make a decision from there.

   [Mr Katona] advised that he would agree to the care level of 50/50 for [Child 2] from the 14/11/2019.

   …

2. The CSA subsequently made a new care decision on the basis that it was first informed on 8 April 2020 of a change in care on 14 November 2019, and each parent had started providing 50% care to [Child 2] from that date. I am not reviewing that decision.

3. At the hearing, Mr Katona stated that [Child 2] had been expelled from a number of schools prior to being enrolled in [School 1]. He said [Child 2] had been mixing with “the wrong people” and had been changed with a number of criminal offences. He said he would “go on a bender” and be uncontactable by Mr Katona or [Ms A].

4. Mr Katona and [Ms A] have provided conflicting accounts of their care of [Child 2]. [Ms A] provided witness statements in support of her account of events. It appears that the original decision-maker was not persuaded that [Ms A] started providing full‑time care from 1 January 2019, but was persuaded that she started providing full-time care from 16 July 2019, based on the information provided by [School 1]. Given the paucity of corroborative evidence that has been provided by either parent, and the fact that [Ms A] did not object to the original decision, I also find that the change in care occurred on 16 July 2019, and [Ms A] started providing full-time care from that date. The decision under review was the preferable decision and will be affirmed: sections 49, 50, 54B and 54F of the Act.

DECISIONS

The decisions under review are affirmed.