Mancusco and Johnson (Child support)

[2018] AATA 3800

Mancusco and Johnson (Child support) [2018] AATA 3800 (26 July 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC014220

APPLICANT:  Mr Mancusco

OTHER PARTIES:  Child Support Registrar

Ms Johnson

TRIBUNAL:Member K Dordevic

DECISION DATE:  26 July 2018

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that Mr Mancusco had 100% and Ms Johnson had 0% care of [Child 1] from 9 February 2018. 

CATCHWORDS
Child support - Percentage of care - Whether there was a change to the likely pattern of care - Existing percentages of care changed - 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 Mancusco and Ms Johnson are the parents of [Child 1] (born 2001).

2. From 19 June 2009 the child support assessment reflected that Ms Johnson had 93% and Mr Mancusco had 7% care of [Child 1].

3. On 13 February 2018 Mr Mancusco notified the Department of Human Services (the Department) that he was providing 100% care to [Child 1] from 9 February 2018. On 13 March 2018 the Department accepted Mr Mancusco’s application, amending the care register to reflect that he had sole care of [Child 1].

4. On 22 March 2018 Ms Johnson objected to the decision. On 22 May 2018 an objections officer allowed the objection, finding that Mr Mancusco had 14% and Ms Johnson had 86% care of [Child 1] from 9 February 2018.

5. On 30 May 2018 Mr Mancusco requested a review of the objections officer’s decision by application to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal).

6. On 18 June 2018 the Department accepted Ms Johnson’s application for a new care assessment, being that Mr Mancusco had sole care of [Child 1] from 17 June 2018.

7. Deputy President Walsh conducted a telephone directions hearing on 6 July 2018. A hearing was convened on 26 July 2018. The parties attended by conference telephone. In reaching its decision the tribunal considered the sworn evidence of the parties as well as the documents provided by the Department (folios 1-131). Mr Mancusco provided additional documents (folios A1-A22) and Ms Johnson provided additional documents (folios B1-B9), copies of which were provided to the Department.

8. At hearing Mr Mancusco requested additional time to provide to the tribunal evidence that [Child 1] was employed by his business since March 2018 amongst other documents. His request was refused. Mr Mancusco also requested that the additional documentation provided by Ms Johnson on 22 July 2018 not be taken into evidence as they were not provided 14 days prior to hearing. The tribunal notes that Mr Mancusco provided additional documents on 25 July 2018. The tribunal refused his request; all documents provided by both parties were accepted into evidence, notwithstanding the fact that they were not received 14 days prior to hearing.

ISSUES

1. The statutory provisions relevant to this review are the Child Support (Assessment) Act 1989 (the Act).

The issues which arise in this case are:

·Has there been a change to the care percentages? And, if so

·What is the date of effect of the change?

CONSIDERATION

10.  Relevant to this matter, section 50 of the Act requires the primary decision-maker to consider the actual or likely pattern of care, by reference to a care period considered appropriate, having regard to all the circumstances. The primary decision-maker’s task is to determine the pattern of care based on actual care at the time of notification and the likely care thereafter.

11.  The tribunal’s task on review is the same. There is a clear temporal element in reviewing care percentage decisions. At first instance, and on review, the questions are the same – what was the pattern of care up until the date of notification and what was likely to occur thereafter? If there is a divergence from what was considered likely to happen, a parent can notify the Department and a new care determination can be made from the date of divergence.

12.  It is not in dispute that there are no written care arrangements, court orders or parenting plans in place, and the tribunal finds accordingly. From 19 June 2009 the child support assessment reflected that Ms Johnson had 93% and Mr Mancusco had 7% care of [Child 1]. At hearing Mr Mancusco stated that he did not regularly care for [Child 1] one night per fortnight. Instead, if she wanted contact she would call him. Ms Johnson did not dispute Mr Mancusco’s evidence on this point and the tribunal finds accordingly. It is also noted that since lodging the application under review, the Department has made a new care determination being that Mr Mancusco had sole care of [Child 1] from 17 June 2018.

13.  Thus, the decision before the tribunal is in relation to the care arrangements during the discrete period of 9 February to 16 June 2018.

14.  Mr Mancusco’s assertions can be summarised as follows. He has had the sole care of [Child 1] from 9 February 2018. He made the care notification as [Child 1] told him that there was an incident between her and her mother on 8 February 2018 and so she now wanted to live with him on a full time basis. He contacted Ms Johnson who stated that it was okay that [Child 1] could stay with him “for a while”. [Child 1] attended counselling in March 2018 regarding her relationship with her mother. Mr Mancusco is adamant that since 9 February 2018 [Child 1] has had no overnight care with her mother and only with her maternal grandmother on one occasion for two consecutive nights. He stated that [Child 1] resigned from her part-time employment with [Employer 1] in March 2018 as she came to work for [him]. He has evidence of her employment by his business, but had not thought to provide it to the tribunal before the hearing.

15.  In support of his application Mr Mancusco provided the following evidence:

·     An email dated 4 July 2018 from [Mr A], [Child 1]’s boyfriend, who states that he has visited [Child 1] at her father’s home for about five months. He also states “she has officially decided to live in now” her father’s home;

·     A part of a letter from [High School 1] dated 25 May 2018 advising Mr Mancusco that [Child 1] must regularly attend school, and that [Child 1] was absent from school without explanation;

·     Letter from [Ms B], dated 5 July 2018. She states that her daughter and [Child 1] have been friends for many years and that from 14 February to 5 April 2018 “every morning” she and her daughter would drive to Mr Mancusco’s home to transport [Child 1] to school. Learner driver records dated 16 February to 17 March 2018 were attached;

·     Letter from Service NSW date stamped 28 May 2018 providing [Child 1] an address label that stated her father’s address;

·     An envelope date stamped 4 May 2018 sent to [Child 1] to her father’s home;

·     A Laverty Pathology request form bearing [Child 1]’s name and Mr Mancusco’s address dated 11 April 2018;

·     Email from [the] deputy principal, [High school 1] dated 6 March 2018 confirming that Mr Mancusco’s details have been added to [Child 1]’s school record;

·     Letter from Mr Mancusco’s partner “[name deleted]” dated 21 February 2018 stating that [Child 1] has resided at their home since 9 February 2018 and will do so indefinitely; and

·     An application to enrol [Child 1] in [Public School 1] completed by Mr Mancusco on 1 June 2018.

16.  Ms Johnson’s initial evidence to the Department can be summarised as follows. In February 2018 [Child 1] asked to spend some time with her father, which she agreed to. Ms Johnson was going overseas for two weeks in March 2018 and [Child 1]’s maternal grandmother would care for her. Upon returning from her vacation [Child 1] informed her that she wish to live between her home, her father’s home and her maternal grandmother’s home. At that point [Child 1] was staying about two nights per week with her father.

17.  At hearing Ms Johnson stated that [Child 1] went to her father’s home on 11 February 2018 as she wanted to attend her paternal cousin’s party. She stayed the night and the following night. The next day Mr Mancusco called the Department and advised that he had sole care. She conceded that she and [Child 1] had had “a pretty ugly argument” in late January 2018 and it was then that she gave [Child 1] her father’s telephone number so that she could call him. She did not approve of [Child 1]’s boyfriend and he was not permitted in her home. However, he was allowed in Mr Mancusco’s home. From February 2018 [Child 1] started going backwards and forwards between her home and Mr Mancusco’s home but refuted the suggestion that she had no care from that time. It was then in June 2018, after Ms Johnson wanted more formality to the care arrangement, that she spoke to [Child 1] about a more permanent arrangement. It was then they agreed that [Child 1] would reside with her father on a full time basis.

18.  On 16 February 2018 Ms Johnson provided the following documents to the Department:

·     Letter from [the deputy principal] dated 13 February 2018 which states that [Child 1] was enrolled in the school in January 2014 by her mother, that no other parent is listed on the enrolment form and her current address is that of her mother;

·     Letter from [a doctor], dated 15 February 2018, which states that [Child 1] has been his patient since 23 September 2011 and that she resides with her mother on a permanent basis;

·     Bank statements held in [Child 1]’s name for the period 24 June to 1 December 2017. The address has been redacted;

·     A statutory declaration from “[name deleted]” dated 15 February 2018 stating that she and Ms Johnson have been friends for 20 years. She states that Ms Johnson has been [Child 1]’s sole caregiver and guardian and that Mr Mancusco has only recently made contact with [Child 1] after many years of not having any contact with her;

·     A Medicare card listing [Child 1] as a member of Ms Johnson’s household; and

·     Letter from Ms Johnson (Senior) dated 24 March 2018, [Child 1]’s maternal grandmother. She states that since March 2018 the established care arrangement is that [Child 1] stays at her mother’s home or her home on weekdays and attends her father’s home on weekends.

19.  On 22 July 2018 Ms Johnson provided the following documents to the tribunal:

• Two envelopes addressed to [Child 1] at Ms Johnson’s home address, one dated 11 July 2018 and the other undated;

• Receipt for a bus pass dated 2 May 2018; and

• An undated letter from Mr Mancusco-Johnson, the parties’ adult son, stating that prior to June 2018 [Child 1] was moving between his mother’s home, his father’s home and his maternal grandmother’s home.

20.  Ms Johnson stated that she did not keep a care diary during the relevant period; she simply had not thought to do so. [Child 1]’s care was both “fluid” and “unstable”; [Child 1] determined where and when she would stay. Some weeks she would have two nights of care, others more. On average she had two to three night care per week. This was also a period where [Child 1] frequently truanted or arrived late to school. She believed that there were some days that [Ms B] drove [Child 1] to school, but suggested that it was not on a full-time basis given the notices she received regarding [Child 1] arriving late to school or not attending school at all.  Ms Johnson did not dispute that [Child 1] began working for her father in about March 2018, but stated that she only ceased working at [Employer 1] in May 2018.

21.  The tribunal did not give any weight to the statements provided by Mr Mancusco’s partner and Ms Johnson’s mother, given their relationships with the parties. Mr Mancusco stated that he has a strained relationship with his [son]; given the level of estrangement described the tribunal declined to give little weight to Mr Mancusco-Johnson’s statement regarding care.

22.  The tribunal is not persuaded that the evidence from [Mr A], [Child 1]’s boyfriend, assists the tribunal. [Mr A] merely states that he visited [Child 1] at her father’s home during the relevant period. This is not in dispute; Ms Johnson’s evidence is that she did not permit [Mr A] to visit her home. Furthermore, [Mr A] states that “now” [Child 1] had decided to live at her father’s home, which is reflected in the current care determination. His evidence on this point suggests that the care arrangements were more fluid during the relevant period.

23.  Mr Mancusco submitted that particular weight should be given to the statement provided by [Ms B] and the driving records in evidence. Examination of the driving records indicate that on 22 days out of 29 school days during the period 16 February to 29 March 2018 the trip details refer to [the] suburb in which Mr Mancusco lives. This is not “every morning” from 14 February 2018 as [Ms B] contends. Nevertheless, Ms Johnson does not contest the fact that [Ms B] may have transported [Child 1] during that period, she said she did not know if this in fact happened. This lends support to Mr Mancusco’s position as it indicates that from mid February to early April 2018 Ms Johnson was not aware of [Child 1]’s actual school transport arrangements. The tribunal concludes that [MsB]’s evidence is persuasive when evaluating the conflicting accounts provided by the parties.

24.  As stated above, there is a temporal element when determining care. The tribunal accepts Mr Mancusco’s evidence that he was having less than fortnightly care with [Child 1] prior to February 2018; she would stay with him when she chose to. Upon notification of Mr Mancusco’s care change Ms Johnson confirmed with the Department that at [Child 1]’s request there was a change to the care arrangements whereby [Child 1] was having increased contact with her father. The tribunal concludes that the change of care reflected the fact that there was deterioration in [Child 1]’s relationship with her mother.

25.  It is always the case that at the time of the review by this tribunal, the majority if not all of the relevant care period will be in the past. This is the case in this review. For the purposes of whether a person “has had, or is likely to have, a pattern of care for the child”, the tribunal will take into account evidence of the care the person has had (actual care) up to the time of the notification to the Registrar and evidence of what care the person is likely to have at that point in time. Evidence of care that a person “has had” since the original determination can prove (or disprove) the likelihood (or otherwise) of a pattern of care at the date of that determination. At the time of Mr Mancusco’s application the evidence suggested that there was a departure from the normal care arrangement in place following an argument between [Child 1] and her mother. The evidence since that date indicates that this was not a minor departure from the established pattern of care.

26.  The difficulty for the tribunal is that clearly there was a change but it is not readily apparent the extent of the change. Ms Johnson’s contends that at its highest Mr Mancusco had 72% care (five night per week). Taking into account the evidence from [Ms B] and in particular Ms Johnson’s inability to comment on [Child 1]’s school transport arrangement during the period 16 February to 29 March 2018 the tribunal was not persuaded that Ms Johnson retained any care of [Child 1] from 9 February 2018. This arrangement was then formalised in June 2018.

27.  Section 54G of the Act provides that the Department must revoke a percentage of care determination if a parent’s care falls below regular care (being 14% care) and the other parent has made the child available. Ms Johnson’s care has fallen from 93% to 0%. There is no evidence that Mr Mancusco did not make [Child 1] available. Therefore, the requirements for section 54G are met. This means that the previous care determination must be revoked.

28.  Paragraph 54G(2)(b) of the Act provides that such a revocation is to take effect from the day before the day on which the person ceased the previously established pattern of care. In this case this was 8 February 2018. Therefore, the new care determination applies from 9 February 2018.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that Mr Mancusco had 100% and Ms Johnson had 0% care of [Child 1] from 9 February 2018.