Moss and Naden (Child support)

[2019] AATA 4867

Moss and Naden (Child support) [2019] AATA 4867 (23 July 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC016238

APPLICANT:  Miss Moss

OTHER PARTIES:  Child Support Registrar

Mr Naden

TRIBUNAL:Member C Breheny

DECISION DATE:  23 July 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – whether a child support terminating event had occurred – 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. Miss Moss and Mr Naden are the separated parents of [Child 1], born September 2001. A child support case has been registered with the Department of Human Services – Child Support (the Department) since 10 January 2004, and from 23 November 2016, child support has been payable on the basis that Mr Naden had 100% care and Miss Moss had 0% care of [Child 1]. Miss Moss is liable to pay child support to Mr Naden.

2. On 1 May 2018 Miss Moss contacted the Department and advised that [Child 1] had left Mr Naden’s care. [Child 1] had been living with his girlfriend and her mother since 3 April 2017. Mr Naden disputed the care change and on 25 August 2018 a decision was made to reject the care change.

3. On 12 November 2018, Miss Moss objected to the decision, stating that [Child 1] was living with his girlfriend, not Mr Naden and, as neither parent had care, the child support case should be ended. On 14 January 2019, an objections officer of the Department decided to disallow the objection.

4. On 2 April 2019, Miss Moss applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal for an independent review of the objection decision. The application was heard on 23 July 2019. Miss Moss and Mr Naden attended the hearing by conference telephone and gave evidence on affirmation. A representative of the Child Support Registrar did not attend the hearing. I had before me the Statement and Documents provided by the Department pursuant to sections 37 and section 38AA of the Administrative Appeals Tribunal Act 1975, received on 13 June 2019 and 4 July 2019 respectively (documents numbered 1–133).

ISSUES & CONSIDERATION

1. The relevant legislation is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988.

2. Sections 49 and 50 of the Act provide that a care determination must be made following an application for a child support assessment and requires consideration of the actual, or likely, pattern of care that the parents will have in relation to the children in a particular care period.

3. In this case, departmental records indicate that since 23 November 2016, child support liability had been calculated on the basis that Miss Moss had 0% care and Mr Naden had 100% care of [Child 1]. Records also show that Miss Moss contacted the Department on 1 May 2018 to advise that [Child 1] had not been in Mr Naden’s care since 3 April 2017. In a decision made on 25 August 2018, it was determined that no care change had occurred.

4. The issue for me to determine is whether a care change occurred on 3 April 2017, as notified by Miss Moss on 1 May 2018.

5. I note Departmental records show that Mr Naden contacted the Department on 18 June 2019 to advise that [Child 1] had now left his care and was living independently (folio 107).

Miss Moss’s evidence

1. Miss Moss stated that she does not see [Child 1] very often, as he lives in the [Town 1] area and she is in Melbourne, but she is in regular contact with [Child 1] by phone or on [social media]. [Child 1] had told her that he was living with his girlfriend, not with Mr Naden. Miss Moss could not remember exactly when [Child 1] told her this, but thought it was around the time she started her job at [an employer] in mid-2017. Miss Moss said that [Child 1] was getting tired of having to look after his younger sibling ([named]) and decided to move to his girlfriend’s place.

2. Miss Moss recalled that [Child 1] asked her back in 2017 for some money to pay for school books, but he has not asked for any other financial assistance from her. [Child 1’s] older brother, [Brother 1], told her that [Child 1] tried to apply for youth allowance from Centrelink, but Mr Naden would not complete the required forms and Centrelink was not able to assist [Child 1].

3. Miss Moss stated that she visited [Town 1] on 15 November 2019 to obtain supporting evidence for her case. [Brother 1] signed a statutory declaration (folio 73) and she also tried to get additional evidence from [Child 1’s] school and [Child 1’s] girlfriend’s mother, but was unable to do so.

Mr Naden’s evidence

1. Mr Naden submitted that [Child 1] was a “typical teenager” who went “back and forth” between his (Mr Naden’s) house and his girlfriend’s home. Mr Naden agreed that [Child 1] would spend several nights a week at his girlfriend’s house, but it varied a lot. For example, [Child 1] might be there three or four nights in one week and up to five nights the next week. His girlfriend’s home is a little closer to [Child 1’s] school, so it was more convenient for him to stay there.

2. Mr Naden stated however that he still paid for all of [Child 1’s] expenses, food, clothes and anything else [Child 1] might need. [Child 1] has a bedroom at Mr Naden’s home and he kept most of his belongings there.

3. Mr Naden said [Child 1’s] school would contact him if there was a problem and the school did contact him on 15 November 2018, when Miss Moss arrived at the school. [Child 1’s] girlfriend’s mother also contacted him, as she was concerned that Miss Moss had approached her for assistance.

4. Mr Naden said that he had not spoken with his older son, [Brother 1], for quite a while, and neither [Child 1] nor [Brother 1] approached him to complete paperwork for Centrelink in the last year or so.

5. Mr Naden agreed that [Child 1] had recently moved out of his (Mr Naden’s) home to stay at his girlfriend’s place. [Child 1] has applied for Centrelink payments and he will be granted payment soon. [Child 1] moved out because the pressure he was getting from other family members (to move out of his father’s home) was getting too much for him.

Miss Moss: additional evidence

1. Miss Moss provided a statutory declaration from [Brother 1], [Child 1’s] older brother (folio 73). [Brother 1]  declares on 15 November 2018 that:

   [Child 1] has lived with his girlfriend [and her mother] since October 15, 2017 and not with his father Mr Naden.

2. Miss Moss also provided copies of SMS messages between [Brother 1] and herself dated 15 November 2018 (the day Miss Moss had gone to [Town 1]). [Brother 1] notes in one of the messages that his dad (Mr Naden) had told him that he would get his “people to come up with fake stat decs…”

3. As noted Miss Moss attempted to get information from [Child 1’s] school and from his girlfriend’s mother, but was unsuccessful.

Mr Naden: additional evidence

1. Mr Naden provided evidence from his sister ([Ms A]) and his ex-wife ([Ms B]) supporting his arguments.

2. In a letter of 16 May 2018 (folio 41) [Ms A] writes that [Child 1] does reside with Mr Naden, but on occasion [Child 1] will stay at his girlfriend’s place or his girlfriend will stay at Mr Naden’s place. [Ms A] notes that the allegations that [Child 1] is living at another residence are false and that she ([Ms A]) has “regular contact with [Mr Naden] and sees him most days…” and her evidence is based on first-hand knowledge of the circumstances.

3. In a statutory declaration received by the Department on 10 December 2018 (folio 75), [Ms A] declares:

   [Child 1] resides with my brother…[Child 1] is a typical teenage boy who has sleepovers at his girlfriend’s or friends’ houses, but spends most nights with his father at the family home…I have daily contact, so I have witnessed [Child 1] being at home with his father.

4. In a letter dated 9 May 2018 (folio 40), [Ms B] (formerly Mrs Naden) writes that she and Mr Naden had been married for seven years and whilst separated for some time now, she remains in regular contact. [Ms B] states that [Child 1] still lives with his father and has his own room set up with his items in it, which she has seen. [Ms B] also notes:

   [Child 1] and his girlfriend do sleep at [Mr Naden’s home] as well and [Child 1] stays at his girlfriend’s home as well as teenagers do.

5. In a further letter of 16 November 2018 (folio 76) [Ms B] writes that she has remained friends with Mr Naden and visits him. She states

   [Child 1] has a room with his stuff in it and a TV, a boys (teenagers) room. [Child 1] is either at home on the game or he would be at his girlfriend’s house and when he’s at home he has his girlfriend with him. He is a typical teenage boy he will ask his father for money so he can do things with his girlfriend. I’ve seen Mr Naden give money to him as well and he buys all his uniform and booklist and clothes he needs.

6. Mr Naden also provided a receipt of $77 paid on 30 November 2018 to [a named] College, [Child 1’s] school (folio 79).

Conclusion

1. Care is generally calculated over a “care period”, which is a period that the Registrar or the Tribunal considers to be appropriate having regard to all the circumstances of the matter (section 50 of the Act). The Department’s policy in this regard, as set out in Chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed, but it may be a shorter period depending on the circumstances of the case.

2. In this case Miss Moss notified the Department on 1 May 2018 that [Child 1] had not been living with his father since 3 April 2017, the most appropriate care period in this case would be the 12-month period from 3 April 2017 to 2 April 2018. I note however that Miss Moss stated at the hearing that she could not recall when exactly [Child 1] moved out of his father’s place, but it might have been in mid-2017.  [Brother 1] on the other hand recalls a specific date and declares that [Child 1] has been living with his girlfriend since 15 October 2017. The actual date as to when [Child 1] supposedly left Mr Naden’s home is therefore very difficult to determine.

3. I also note that Miss Moss contacted the Department about seven months (according to [Brother 1] ) or about a year after the apparent care change occurred and it seems unusual that she should delay the notification, given that she is the parent liable to pay child support.

4. Both Miss Moss and Mr Naden provided letters/statutory declarations supporting their respective views. The evidence basically confirms that [Child 1] is spending time at his girlfriend’s place, but it varies with regard to how much time he does spend there.

5. Miss Moss, supported by her older son, [Brother 1], contends that [Child 1] spends all of his time at his girlfriend’s place, whereas Mr Naden’s evidence, supported by his sister and ex-wife, is that [Child 1] does spend some nights at his girlfriend’s home, but also stays at Mr Naden’s home.

6. Miss Moss’s other evidence to me was that she has no regular face-to-face contact with [Child 1] and that [Child 1] does not ask her for financial assistance (apart from one time in 2017). [Child 1] has also not been on Centrelink payments, as Mr Naden refused to sign the paperwork. Mr Naden submitted that he continued to support [Child 1] financially, until recently, when [Child 1] applied for youth allowance with Centrelink.

7. In view of the differing evidence before me I have considered the Department’s policy in regard of care for older children living away from home, as set out in chapter 2.2.1. It relevantly states:

Older children living away from home

Generally, older children who live independently and separately from their parents or carers provide for many of their own needs. This may include meeting their own ongoing daily needs (such as meal preparation, transport, socialising, etc.) as well as making their own decisions about their daily activities, schooling and health issues. Therefore, it may be difficult to establish whether a person provides care for an older child who lives separately from that person.

Where a person provides substantial financial support to an older child living away from home, the Registrar will generally consider that financial support as an indicator that the person is continuing to provide care for the child. The support can be in relation to daily costs such as food, accommodation and transport, and/or longer term costs such as school fees, paying for airfares home for holidays, clothing, health and dental care, etc.

While financial support is often a key factor in determining whether a person cares for a child who lives away from home, it will not always be the sole determinant. In cases where the financial support provided is limited, and other factors exist that suggest that the person continues to care for the child, the Registrar will consider whether the person is actively involved in major decisions relating to the child. For example, decisions relating to the child's health, schooling, relationships, career, etc. may be indicators that the person continues to provide care for the child.

1. In view of the evidence before me, I accept that [Child 1] spends significant time away from Mr Naden’s home, but I also accept that Mr Naden continues to provide substantial financial support for [Child 1]. [Child 1] has not been on Centrelink payments and there is no evidence that he has a job. Whilst his girlfriend’s mother may provide meals for [Child 1] when he stays at her place, I consider it to be highly unlikely that she would, in essence, agree to financially support another child.

2. Mr Naden said that [Child 1’s] school contacted him, after Miss Moss approached them for assistance. This would be unlikely, if Mr Naden were not actively involved in [Child 1’s] schooling.

3. In this case there is conflicting evidence from Miss Moss as to an exact date that [Child 1] supposedly left Mr Naden’s care (3 April 2017, mid-2017 or 15 October 2017), but there is evidence that Mr Naden has still been financially supporting [Child 1], until very recently and was also still involved in all major aspects of [Child 1’s] life, such as his schooling.

4. Overall, I am thus persuaded that Mr Naden continued to provide care for [Child 1], even if [Child 1] did spend a lot of time at his girlfriend’s place, and that no care change occurred on 3 April 2017 (as initially notified by Miss Moss) or any other date in 2017. This is the same conclusion as reached by the objections officer and I therefore affirm the decision under review.

DECISION

The decision under review is affirmed.