McGuire and Child Support Registrar (Child support)

[2019] AATA 5015

McGuire and Child Support Registrar (Child support) [2019] AATA 5015 (29 October 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC016989

APPLICANT:  Ms McGuire

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member P Sperling

DECISION DATE:  29 October 2019

DECISION:

The tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – decision to revoke existing percentage of care determinations and make new determinations - decision 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 DECISION

BACKGROUND

1. Ms McGuire and Mr [A] are the parents of [Child] (the child). The Department of Human Services – Child Support (the Department) determined that from 10 January 2011 Ms McGuire had a percentage of care of 100% for the child and Mr [A] had a percentage of care of 0% for the child.

2. In January 2019 the Family Assistance Office, Centrelink (FAO) advised the Department that the care of the child had changed such that Mr [A] had 100% care of the child and Ms McGuire 0% care of the child from 23 August 2018. This advice was provided on the basis of notification received by the FAO from Mr [A] on 28 August 2018.

3. On 23 January 2019 the Department decided to change the care determination to reflect that Mr [A] had 100% care of the child and Ms McGuire had 0% care of the child with effect from 23 August 2018. Ms McGuire disagreed with the decision and lodged an objection on 3 February 2019. On 20 June 2019, an objections officer disallowed Ms McGuire’s objection.

4. On 23 July 2019, Ms McGuire lodged an application to the Administrative Appeals Tribunal (the tribunal) for a review of the decision. Mr [A] was invited to participate in the hearing but did not apply to be a party and so he was not made a party to this review. The hearing took place on 28 October 2019. Ms McGuire attended the hearing in person and gave sworn evidence. In making its decision the tribunal took into consideration the documents (numbered 1 to 147) provided by the Department which were also sent to Ms McGuire. Prior to the hearing Ms McGuire provided an additional submission (A1) to the tribunal and following the hearing she provided further documents (A2 to A3). On 29 October 2019 the tribunal proceeded to make its decision taking into account all of the evidence provided.

CONSIDERATION

1. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

Has there been a change in the care of the child?

1. The Act requires the decision maker to make point-in-time care decisions on the basis of what has happened up until a change in care is considered and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate and when such a divergence occurs, a parent can notify the Department so that a new care determination can be made. However, the legislative test in the first instance and on review remains the same: what had happened until the date of the notification and what was likely to happen thereafter? Therefore in this case the tribunal is required to determine what percentage of care Ms McGuire and Mr [A] were likely to have for the child from 23 August 2018.

2. Ms McGuire was assessed from 10 January 2011 as having 100% care of the child. During the hearing Ms McGuire confirmed that there were no court orders or parenting plans in place for the care of the child and no written agreement between the parents and that the child had been in Ms McGuire’s sole care for many years.

3. Ms McGuire told the tribunal sometime between one and two weeks prior to 23 August 2018 the child ran away from home and so Ms McGuire contacted the Department of Human Services Victoria and the Victorian Police and she also actively searched for the child during this period. Ms McGuire said that she finally contacted the child through Facebook and advised the child that the police would be coming to get her. Ms McGuire told the tribunal that, because the child didn’t want to go into protective custody, the child responded via Facebook advising that she was staying with Mr [A]. Ms McGuire also told the tribunal that she believed that the child only stayed with Mr [A] for a few nights, as she was not allowed to take any possessions or clothes to his house. Ms McGuire told the tribunal that she believed that during the remainder of the period under review (23 August 2018 to 30 November 2018) the child was ‘couch surfing’ at her friends’ houses. Ms McGuire also told the tribunal that she believed that the child periodically returned to Mr [A]’s house at specific times when child protection officers were scheduled to visit, because the child didn’t want to go into protective custody. Ms McGuire further said that the child and some of her friends had subsequently told her that the child was staying elsewhere during this period and was hardly ever at Mr [A]’s house.

4. Ms McGuire also told the tribunal that for at least one week the child was staying with the family of one of her friends and she provided an undated letter from Mr [B] (A3), father of the child’s friend, which states that the child was staying at his home for a week from late August into September 2018. Ms McGuire also told the tribunal that for a total of about five or six nights during this period the child returned to stay with her on an ad hoc basis.

10.In summary, Ms McGuire maintained that the child was not in any adult’s care from 23 August 2018 until she returned to Ms McGuire’s care on 1 December 2018 and that during this period the child was living independently with her friends. Further, Ms McGuire maintained that the child feigned being in Mr [A]’s care during this period because she was scared of being taken away by child protection.

11.Ms McGuire’s evidence to the Department and to the tribunal regarding care of the child from 23 August 2018 can be summarised as follows:

·     Ms McGuire was in touch with child protection during the time Mr [A] says the child was in his care and she believed the child was still legally in her care during August and September 2018;

·     Ms McGuire incurred costs of approximately $1,000 for airfares and accommodation to Darwin for the child during this period as she believed that the child was still in her care and hoped to be reunited with her; however, the child subsequently refused to go on the trip with her, opting instead to stay with Mr [A];

·     Ms McGuire also paid Mr [A] $400 towards care of the child, which he spent on himself;

·     the child’s stay with Mr [A] was always deemed to be temporary as he is a known substance abuser with violent tendencies and was unable to provide a safe, stable home;

·     while in Mr [A]’s care the child had no bed or room and was forced to sleep on a couch and was too scared to take any of her things from home to Mr [A]’s house;

·     the child did not attend school while she was staying with Mr [A] over this period;

·     the child was not permitted to take her belongings with her to Mr [A]’s house and all her things remained at Ms McGuire’s house in her bedroom;

·     Mr [A] didn’t wash the child’s clothes or provide her with necessary food or toiletries and the child asked Ms McGuire for toiletries and food which she provided;

·     Mr [A] failed to provide the child with her antidepressant medication;

·     Mr [A] did not incur any real costs for the child during this short period to justify this assessment and he should have no entitlement to child support for this period;

·     this assessment has not factored in the significant costs that Ms McGuire incurred for the child during 2018 including schooling, textbooks, uniforms, fees and a public transport annual pass;

·     the child returned to Ms McGuire’s care prior to Christmas 2018;

·     child protection social workers have confirmed that, as at 23 August 2018, the child was not in the care of Mr [A] and was not in care of anybody at that point as she was couch surfing until 12 September 2018.

12.Ms McGuire summarised the actions she took to get back care of the child over this period including contact with the Department of Human Services Victoria, contact with a support worker at McKillop Family Services and mediation sessions between herself and the child. She told the tribunal that during this period the child remained adamant that she didn’t want to return to Ms McGuire’s home because she wanted to ‘do drugs’ but Ms McGuire would not allow that.

13.In his communication with the Department during the review of this matter, Mr [A] advised that the child was in his care from 23 August 2018 until 1 December 2018 as she didn’t have anywhere else to go. He also provided several handwritten statements which are contained in the Department’s documents, where he outlined his view as follows:

·     since 23 August 2018 he had solely supported the child but it was very hard;

·     the child ran away from Ms McGuire about two weeks or more before 23 August 2018 and was missing and the police, Mr [A] and Ms McGuire were all looking for her during this period;

·     Mr [A] found her and she advised that she wanted to live with him and didn’t want to live with Ms McGuire;

·     both Mr [A] and the child were couch surfing at a friend’s house during this period;

·     Ms McGuire did not give the child money or clothes from home or try to see her or talk to her for the first four to five months of this period;

·     although she received a lot of money from the government in respect of the child over this period, Ms McGuire didn’t offer anything to the child or himself during this period.

14.The Department’s documents also contain a number of letters from third parties provided by Ms McGuire and Mr [A] to the Department, which were considered by the tribunal and can be summarised as follows:

·     statutory declaration provided by Ms McGuire dated 15 February 2019 from [Ms C], stating that the child spent most of her time since before Christmas at her mother’s house during the day, eating there and sleeping some nights and at her friends’ houses on others and that she didn’t spend much time, if any, at her father’s house;

·     undated letter provided by Ms McGuire from [Ms D], stating that Ms McGuire was providing financial support, food and toiletries for the child when she was supposed to be in Mr [A]’s care;

·     statutory declaration provided by Ms McGuire of 15 February 2019 from [Ms E], stating that the child has not been living with her father since just before Christmas and has spent the majority of her time at her mother’s house during the day and has spent some nights there, some with cousins and some couch surfing at friends’ houses;

·     undated letter provided by Mr [A] from [Ms F], Mr [A]’s sister, stating that the child has been in Mr [A]’s care since 23 August 2018 when she left home and has received no help from her mother;

·     undated letter provided by Mr [A] from [Ms G], Mr [A]’s partner, stating that the child came into Mr [A]’s care on 23 August 2018 and was living with herself and Mr [A] at a friend’s house, couch surfing;

·     undated letter provided by Mr [A] from [Ms H], stating that the child was living with Mr [A] since around 23 August 2018.

1. During the hearing Ms McGuire said that the letters provided by Mr [A] were ‘full of lies’ and pointed out that the child was not in his care for four to five months, as claimed in one of his letters. She further challenged the content of some of the other letters that Mr [A] had provided to the Department from his friends and acquaintances.

2. In considering the evidence provided, the tribunal was not persuaded that any of the third party statements summarised in paragraph 14 of these Reasons are, of themselves, clear and unequivocal evidence of the care provided or intended to be provided during the period under review. The tribunal also notes that many of the written statements provided by both parents are worded similarly and signed on or around the same date or undated. As such the tribunal considers that these statements are not necessarily reliable and preferred to take into account evidence provided by each of the parents to the Department closer to the period under review.

3. The tribunal also noted that Ms McGuire did not provide comprehensive evidence regarding the whereabouts or care of the child during the period under review and that her position, as outlined to the tribunal, was based on her general belief about the whereabouts of the child during the period under review rather than any conclusive evidence regarding the specific dates and care arrangements for the child during this period.

4. Having considered the circumstances in this matter and all of the available evidence, the tribunal is not satisfied that there is sufficient evidence to support Ms McGuire’s position that Mr [A]’s notification to FAO that the child was in his care from 23 August 2018 was incorrect nor is there sufficient evidence that the child was not in his care from this date. While the tribunal accepts that Ms McGuire remained involved in the child’s life and provided some funds and support to the child between 23 August 2018 and 30 November 2018, the tribunal was persuaded that the care arrangement, as advised to the FAO by Mr [A] shortly after the care change occurred, was an accurate reflection of the care that was taking place at the time: that is, that the child was in Mr [A]’s 100% care from 23 August 2018. Therefore the tribunal finds that from 23 August 2018 there was a change in the care which constitutes a change to the pattern of care such that Ms McGuire had 0% care of the child and Mr [A] 100% care of the child.

5. Section 50 of the Act requires a new determination of a percentage of care to be made where an existing determination has been revoked and the tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period.

Should the existing care determinations in relation to the child be revoked?

20.Subsection 54F of the Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if the Child Support Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child or children (paragraph 54F(1)(a)).

21.In this case, the tribunal has determined that a previous care determination was made under section 49 of the Act from 11 January 2011 under which Ms McGuire had a percentage of care for the child of 100% and that Mr [A] had a percentage of care of 0%. Mr [A] notified the FAO on 28 August 2018 and advised that from 23 August 2018 the care that was taking place for the child did not correspond with the existing percentages of care as determined from 11 January 2011. Therefore paragraph 54F(1)(a) of the Act is satisfied.

1. Paragraph 54F(1)(b) of the Act also requires that there would be a change in the cost percentage if another percentage of care were determined for Ms McGuire under sections 49 or 50 of the Act. The tribunal finds that cost percentages would change if new determinations were to be made, therefore paragraph 54F(1)(b) is satisfied and, as section 54G does not apply (paragraph 54F(1)(c)), the tribunal must revoke the existing determinations of percentages of care.

23.The tribunal is required to consider the actual care of the child during the care period. The care period is such a period as the Child Support Registrar considers to be appropriate having regard to all the circumstances (section 50 of the Act). In this case, the Department determined that the care period should commence from 23 August 2018 and the tribunal is satisfied that a care period commencing 23 August 2018 is appropriate in this case noting that Mr [A] notified the FAO of the change in care on 28 August 2018, which was within the statutorily required 28-day notification period.

24.In the circumstances the tribunal must revoke the existing determinations of percentages of care and make a new determination that Ms McGuire has 0% care of the child from 23 August 2018 and Mr [A] has 100% care of the child from 23 August 2018.

25.The Department’s decision is therefore legally correct and is affirmed.

DECISION

The tribunal affirms the decision under review.