Moss and Waack (Child support)

[2020] AATA 5569

Moss and Waack (Child support) [2020] AATA 5569 (23 November 2020)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2020/AC020093

APPLICANT:  Mr Moss

OTHER PARTIES:  Child Support Registrar

Mrs Waack

TRIBUNAL:Member A Schiwy

DECISION DATE:  23 November 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – determination of whether care exists – no change to the care percentages – decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted 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 Moss and Mrs Waack are the parents of [the child], and this application is about the percentage of care each parent has for [the child].

2. [The child] turned 18 years old on 7 December 2019.  Care of [the child] has changed over the years and the most recent determination made by the Department of Human Services (now Services Australia) (‘Child Support’) was that Mrs Waack had 92% care of [the child] and Mr Moss had 8% care.

3. On 11 November 2019 Mr Moss contacted Child Support and told them that over the last two years [the child] had been inconsistently in Mrs Waack’s care and that [the child] left her mother’s care on ‘Sept 20’ (Child Support acted on the basis that Mr Moss stated a change occurred on 20 September 2019 but during the hearing he explained that he was referring to changes since 20 September 2017.  He amended his application for a change in care to be from 13 July 2019). 

4. On 22 January 2020 Child Support decided that there had been no change in care.

5. On 7 May 2020 Mr Waack objected to this decision and on 2 October 2020 a Child Support objections officer decided to disallow his objection.

6. Mr Moss applied to the tribunal on 21 October 2020 for a review of the decision of the objections officer.

7. A hearing was held on 19 November 2020.  Mr Moss spoke to the tribunal via teleconference and gave evidence on affirmation.  At the time of the hearing, Mrs Waack informed the tribunal that she did not wish to participate.  She was provided with an opportunity to provide further submissions after the hearing.  Mrs Waack provided a further submission and copies of text messages and bank transactions.  A copy has been attached with this decision (B1-B56).

8. In considering this matter, the tribunal took into account the oral evidence of Mr Moss; the relevant documentation provided by the Child Support Registrar (numbered 1 to 82) and the documents provided by Mr Moss (A1 to A10).  Copies of the numbered documents were provided to all parties.

ISSUES

1. The Child Support (Assessment) Act 1989 (the Assessment Act) provides for an administrative assessment of the child support payable by one parent to the other. It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes, the number of children and their percentages of care.

2. The Assessment Act contains a complex scheme governing the determination of percentages of care: Division 4 of Part 5 of the Assessment Act. Essentially, if there is a pattern of care of the child by two (or more) persons, a percentage of care of the child is determined for each parent or caregiver. That determination remains in force until it is revoked.

11.The issue in this case is whether there was a change in the pattern of care on 13 July 2019.

CONSIDERATION

Evidence taken from the Child Support papers

12.Child Support made a file note on 11 November 2019 that Mr Moss said that:

·Over the last two years [the child] has been inconsistently in Mrs Waack’s care.

·Periods of up to three months have gone by in the past as the relationship is not good.

·He had to pay for unpaid school fees as Mrs Waack didn’t make payments when they were due.

·[The child] had left Mrs Waack’s care on ‘Sept 20’.

13.Child Support made a file note on 16 November 2019 that Mrs Waack said that [the child] did stay with her boyfriend ‘as teenagers do’ but [the child] had not moved out and Mrs Waack was still responsible for her care.  Mrs Waack stated that she was happy to ‘opt out’ from today (meaning Child Support would no longer collect payments from Mr Moss) but she wanted any arrears collected.  (The tribunal noted that Mr Moss had been assessed to pay annual child support of $9,552 but from 31 July 2019 his liability reduced to $637 on the basis of his estimated income for 2019–20 of nil; and a liability of $435 from 6 November 2019 to the case terminated on 6 December 2019.)

14.Child Support made a file note on 17 December 2019 that Mrs Waack said that [the child] resided with her until she turned 18 and has now moved into a rental property with her boyfriend. 

15.Mrs Waack made a written submission to Child Support on 30 December 2019 (responding to advice that Mr Moss was seeking a change in care from 20 September 2019).  She stated that:

·School holidays began on 21 September 2019 and [the child] was coming and going during this time, spending nights at her boyfriend [Mr A]’s parents’ property.  She would often spend time with others over the holidays including time with her aunts and cousins.

·She was away from 30 September 2019 to 7 October 2019 and [the child] stayed at Mrs Waack’s house with [Mr A] and looked after the family pet.

·There was a death in the family with the funeral on 9 October 2019.  There were a number of family events over the week and [the child] attended all of them.

·She took [the child] for a driving lesson on 29 October 2019 and then took her to get her licence.  She paid for both (a receipt was provided).

·[The child]’s graduation and formal were on 13 and 14 November 2019.  Mrs Waack attended both and took [the child] to get her hair and makeup done and also had professional photos taken with a friend’s horse.  She purchased the dress and jewellery (bank statements evidencing the purchases were provided).

·[The child] would stay sporadically with her boyfriend, especially after they argued and on weekends.  She was responsible financially for [the child] the whole time.

·[The child]’s boyfriend got a rental property on 6 December 2019 and [the child] moved out ‘officially’.  She has continued to provide financial support to [the child].

·She ‘opted out’ from Child Support Collect on 16 November 2019 as she knew [the child] would be moving out soon with [Mr A]; she does not intend on collecting any payments from Mr Moss.

·A letter signed by Mrs Waack’s partner was attached which stated that he could confirm the dates and details in Mrs Waack’s letter; that [the child] did not move most of her belongings out of the house until she moved into [Mr A]’s rental.

·Bank statements and receipts were provided showing various purchases for clothes, nails, payments to [the child]’s account ($35 on 25 October 2019 and $50 on 12 December 2019), a driving lesson and driver’s licence of $112.

·A text message was also attached including a photo of [the child] taken with a horse on 15 November 2019 that was clearly arranged by Mrs Waack.

16.On 22 January 2019 Child Support contacted Mr Moss to state that as he had not provided any evidence, they were rejecting his application.

17.On 25 May 2020 Mr Moss provided Child Support with a statutory declaration made by [Mr A]’s mother, [Ms AA].  The declaration was dated 25 May 2020 and stated that [the child] was residing with [Ms AA] from 13 July 2019 to 9 December 2019 due to family issues.

18.On 27 May 2020 Mr Moss contacted Child Support to object to the original decision.  Child Support made a file note that Mr Moss said [the child] moved out on 13 July 2019 and he had the statutory declaration from [Ms AA] to confirm this.

19.On 8 June 2020 Mrs Waack made a written response to the objection and stated that:

·[The child] did not move out on 13 July 2019.

·[Ms AA]’s declaration was false.

·[The child] did spend time at [Ms AA]’s especially if she was arguing with Mrs Waack and reacting to boundaries they put in place.  She had only started going out with [Mr A] on 31 May 2019.

·[Ms AA] was not actually living at the house where [Mr A] was staying, she lived elsewhere with her boyfriend and would not know how often [the child] stayed in the house.  [Ms AA] also sold the house in September 2019.

·[The child] left her belongings at home until she moved out in December.  Mrs Waack provided her with linen, furniture and kitchen items.

·Mrs Waack provided several text messages between herself and [the child], dated 7 July 2019 to 3 January 2020.  Many of them were arrangements for Mrs Waack to take [the child] to or from school and work.  An example is one on 21 August 2019 where [the child] says she might go to school in the morning and asking her mother not to drive off with her uniform.  Her mother tells [the child] that the uniform is on her bed.  On 3 October 2019 [the child] asks where the frypan is, and Mrs Waack let her know it was broken.  An undated message is about [the child] staying at home with [Mr A]’s dogs and Mrs Waack says “ok, but can’t go on.  You are welcome anytime cause its your home …”  On 20 October 2019 [the child] requests permission for [Mr A] to stay the night.

Additional evidence provided by Mr Moss

20.Mr Moss provided further statutory declarations from [Ms AA] and [Mr AA].  [Ms AA] declared on 8 October 2020 that [the child] was residing with [Ms AA] from 13 July 2019 to 18 October 2019.  In a separate declaration she states that this is an amendment to the original statement “as we were all to move in together and due to unforeseen circumstances they moved with [Location] with [Mr AA] ([Mr A]’s father) thereafter.”  [Mr AA] declared that [the child] was residing with him from 18 October 2019 to 9 December 2019.

21.Mr Moss made a statement that:

·Since 2016 [the child] had told him on four occasions that she could not live with Mrs Waack and her stepfather due to aggressive disagreements and psychological abuse.  She indicated that her mother had been stealing from her and as a result [the child] lived in different locations from 10 January 2017 to 12 July 2019.

·In June 2019 [the child] told him she had been feeding and clothing herself from money she earned doing part-time work.  She had savings that she hid from her mother and was planning to move in permanently with [Mr A].

·[The child] commenced living with [Mr A] on a permeant basis at [Mr A]’s mother’s home.

·[Ms AA] supported [the child] with accommodation, food and transport ‘solely by [Ms AA]’.

·[The child] was adamant she received no support form Mrs Waack from 13 July 2019.

·Transfer of money form Mrs Waack was due to Mrs Waack repaying money she borrowed or took without consent.  [The child] paid her mother cash for the driving lesson and then Mrs Waack paid for it by bank transfer.

·Mrs Waack knew [the child] had moved in with [Mr AA] in September 2019.

Evidence provided at the hearing

22.At the hearing, Mr Moss stated:

·He made a diary entry recording that on 20 September 2017 [the child] told him she had suffered physical abuse at home and had moved in with her boyfriend [Mr B]’s parents.  She stayed there for three months and then for some time lived between this house and Mrs Waack’s house.

·At the time he tried to get [the child] to come and live with him, but he lives two and half hours’ drive away, and it was not practical.

·He visited her at [Mr B]’s house to ensure she was being cared for.  [Mr B]’s parents refused any financial assistance from Mr Moss.  He rang [the child] every couple of days.  [The child] was with [Mr B] until December 2018 and spent a few days per week at his house up until then.

·He did not contact Child Support as he believed that Mrs Waack should have done this, and he also believed he could not seek a change without documentary evidence.

·Not long after she broke up with [Mr B] she started seeking [Mr A].  [The child] did not disclose the relationship initially, but when asked where she got a car to drive to school she revealed that [Mr A] was her boyfriend.

·[Mr A]’s mother looked after [the child] by providing a roof over her head, food and transport, and lending [the child] her [car].  He had offered to provide financial assistance to [Ms AA], but his offer was refused.

·[The child] told him she was not living at home, but it was a long time before he contacted Child Support as he did not have documentary evidence.

·When asked why he told Child Support on 17 December 2019 that [the child] with living with [Mr A] and [Ms AA], Mr Moss said he didn’t mention [Ms AA] during this conversation with Child Support.

·He also provided [the child] with money to put towards her formal expenses.  He attended the entire formal, whereas Mrs Waack arrived late and left early. 

·The text messages provided by Mrs Waack do not prove [the child] was living at home; only that she got lifts to school and work with Mrs Waack.  The text where [the child] asks if she can eat some food she found in the fridge just means [the child] dropped into the house for a visit; not that she was living there.

·When asked why [Ms AA] made a false declaration, Mr Moss said he approached [Ms AA] about it and told her it had made him look like a fool.  He said she is a good person and doesn’t know why she gave the incorrect dates in the first declaration; he said she got it wrong.

·He gave [the child] $100 in cash every three weeks.

·[The child] can act in a manipulative manner at times.

Discussion

23.There is no dispute that [the child] spent some time at her boyfriend’s mother’s residence but the evidence about the extent of these stays is conflicting.

24.Mr Moss has submitted that [the child] left home on a permanent basis on 13 July 2019 and said that [the child] has told him on several occasions she could not stay with her mother because of the abuse.  However, it is clear from the text messages provided, that had been sent immediately before and after this date, that [the child]’s relationship with her mother was at least cordial.  This is strange given that she had apparently left her mother’s home on a permanent basis due to arguments or abuse.

25.Mr Moss provided a statutory declaration from [Ms AA] to Child Support in May 2020 to support his objection.  He did not appear to know that the declaration was incorrect until Mrs Waack told Child Support that [Ms AA] had sold the house in September 2019.  [Ms AA]’s excuse for making a false declaration was not credible; to say that she put those dates in because it was intended that they live together is not a valid reason for declaring the incorrect dates in May 2020 (when it was clear they did not live together).  The actual reason [Ms AA] put in the wrong dates has not been provided to the tribunal but it is reasonable to infer that [Ms AA] may have thought she was being helpful by making that statement.  The tribunal therefore decided that [Ms AA]’s evidence, in all of her declarations, and that of [Mr A]’s father, should have little weight.

26.Given Mr Moss provided [Ms AA]’s statement to Child Support in May 2020, he either was not in a position to know that [the child] had not been staying with [Mr A]’s mother after the house was sold or he knowingly provided the false declaration to Child Support.  Assuming he did not know, this puts in doubt his ability to provide evidence as to where [the child] was actually living.

27.The tribunal considered the Child Support Guide’s guidelines to consider when determining if care exists, set out at Part 2.2.1 of the Guide:

Determining whether care exists

An object of the CSA Act is 'that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings' (section 4(2)(c)). The CSA Act does not define the term 'ongoing daily care', however the Registrar will take into account a number of factors in determining whether a person cares for a child.

In most cases, it will be relatively clear whether and to what extent a person is caring for a child. However, where there is doubt, the Registrar will consider whichever of the following are relevant to the particular case:

·To what extent the person has control of the child, including having overall responsibility for the child and making:

omajor decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and

oarrangements for others to meet the needs of the child (delegated care).

·To what extent the person meets the needs of the child by providing the child with accommodation, clothing, food, childcare, education, health care, emotional support, supervision, transport and extra-curricular activities.

·To what extent the person pays for the costs of meeting the needs of the child.

·To what extent the person otherwise provides financial support for the child.

·To what extent the child provides for his or her own needs or has those needs met from another source.

·To what extent the child is financially independent or financially supported from another source.

28.After considering all of the evidence, the tribunal was not persuaded that Mrs Waack did not have care of [the child] from 13 July 2019 to 6 December 2019.  Whilst [the child] may have spent a lot of time with her boyfriend, at his mother’s residence, this does not mean that Mrs Waack was not responsible for [the child] or providing financial support to [the child].

DECISION

The decision under review is affirmed.