Matheson and Mendy (Child support)

[2020] AATA 4409

Matheson and Mendy (Child support) [2020] AATA 4409 (19 August 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC019445

APPLICANT:  Mr Matheson

OTHER PARTIES:  Child Support Registrar

Ms Mendy

TRIBUNAL:Member K Dordevic

DECISION DATE:  19 August 2020

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made – date of care change – decision under review set aside and substituted

1. The decision of the tribunal and the reasons for the decision were delivered orally on 19 August 2020.

2. The following paragraphs are the reasons for the tribunal’s decision.

Reasons for decision

1. Relevant to this application, Mr Matheson and Ms Mendy are the parents of one child. This application concerns the child’s care arrangements from 1 February 2020. 

2. On 21 March 2006 a child support assessment was registered with the Department of Humans Services – Child Support, reflecting that the mother had 100% care of the child.

3. On 17 February 2020 the father contacted the Department to advise that there was a change to the child’s care arrangements, whereby he had sole care from 22 January 2020. On 3 March 2020 the father’s application was accepted, and Child Support amended the care record to reflect that the father had 100% and the mother 0% care of the child from 22 January 2020.

4. On 5 March 2020 the mother objected to the decision. The objection was allowed on 25 June 2020, whereby amending the care record to reflect that the change to the child’s care arrangements took place on 14 February 2020.

5. The father sought review of that decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) on 10 July 2020.

6. The matter was heard on 19 August 2020. The father appeared by conference telephone. The Child Support Registrar elected not to attend the hearing.

7. The mother did not make herself available for the hearing. During the first 15 minutes of the scheduled hearing time four telephone calls were made to the mother, with no answer. A message was left advising of the hearing and the need to contact the tribunal urgently to attend. After confirming that a reminder SMS text was sent to the mother on 18 August 2020, and that no correspondence was received from her advising of her inability to attend, the tribunal proceeded in her absence on the basis that it was satisfied that she was given adequate notice of the time and date of hearing. 

10.  In reaching its decision the tribunal considered the sworn evidence of the parents as well as the documentation provided by the Department (folios 1–108) and documents provided by the father (A1-A10).

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

12.  The tribunal must determine the parents’ respective care percentages at the time the father lodged his change of care application.

13.  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.

14.  The tribunal finds that there are no court orders, parenting plans or written agreements in place regarding the child’s care. There is also no dispute that there was a change to the child’s care arrangements, whereby the child lived full-time with the father from February 2020. The tribunal finds that the father had 100% care of the child and the mother had 0% care of the child from some time between 1 to 14 February 2020. They only dispute between the parents is the date that the change took place. The father states that it was 1 February 2020; the mother that it took place on 14 February 2020.

15.  At hearing the father explained that the child came into his care as the mother was in hospital and left their older (now adult) son in charge. When Term 1 2020 began the child contacted him and stated that he had no money to purchase necessary items for school. He then invited the child to come and live with him.

16.  The tribunal put to the father the conflicting evidence that he has provided Child Support regarding the care change date. He conceded that he had provided an earlier date to Child Support when lodging his application, but he is now certain that it was 1 February 2020. He explained that he is not good with dates and just knew that it was around the time school returned after the summer holidays. His partner recorded the date of care change, and therefore he is now satisfied it took place on 1 February 2020.

17.  The father has provided evidence that the child changed his residential address on his learner driver licence, however there is no evidence when this change was recorded with Services NSW. The father also provided a letter that he purportedly sent to the child’s school, advising that the care change took place on 1 February 2020. However, this letter is undated, and there is no evidence when it was sent to the school. Thus, the tribunal did not find these documents persuasive as to the date of the care change.

18.  There is also in evidence a letter from Opal, regarding the child’s replacement Opal card, dated 26 February 2020, sent to the father’s residential address. Again, this does not substantiate the father’s claim that the care change took place on a date earlier than 14 February 2020.

19.  The father did provide evidence of text messages to this tribunal, which he did not provide to Child Support. He asserts that the text messages in evidence (at folio A2) demonstrate communication between the child and his current partner on 6 February 2020. The text messages suggest that the child advised that he would not be “home” until later. The tribunal cannot be satisfied that this is a text message from the child and so placed little weight on this evidence.

20.  However, the tribunal did find the text message at folio A3 persuasive. The father states that this is a text message that he received from his and the mother’s adult son [Mr A]. The text message is dated 10 February 2020 and states: “Since [expletive] when has [the child] been living with you two”. At hearing the father explained that he is estranged from this son, who was angry at the thought of the child living with him.

21.  The tribunal also found persuasive the evidence (at folio A5) which indicates that on 8 February 2020 the father purchased three school uniform items, which he asserts is for the child. This is consistent with the father’s evidence that the child moved to his home as he did not have the necessary school items to start the academic year.

22.  The tribunal notes that the mother has not provided any evidence to substantiate her claim that the change of care occurred on 14 February 2020 and not before.

23.  After having the benefit of the father’s testimony and the additional documents he provided, the tribunal is persuaded that the change to the child’s care arrangements took place on 1 February 2020 and not 14 February 2020. The tribunal reached this conclusion on the basis of the text message from the adult son to the father and the evidence of the school items purchased on 8 February 2020.

24.  Having determined that the care change took place on 1 February 2020, the tribunal considered paragraph 54F(3)(a) of the Act. It states that in situations where the change was notified within 28 days of the care change (as is the case in this matter), the date of revocation is the day before the change of care day. Thus, the tribunal revokes the mother’s care percentage of 100% and the father’s care percentage of 0% on 31 January 2020 and replaces it with new care percentages of 0% to the mother and 100% to the father from 1 February 2020.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that:

·Mr Matheson’s care percentage of 0% is revoked and replaced with a new care percentage of 100% from 1 February 2020; and

·Ms Mendy’s care percentage of 100% is revoked and replaced with a new care percentage of 0% from 1 February 2020.