Nesser and Child Support Registrar (Child support)

[2020] AATA 1761

Nesser and Child Support Registrar (Child support) [2020] AATA 1761 (27 April 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC018606

APPLICANT:  Mr Nesser

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member K Dordevic

DECISION DATE:  27 April 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – percentage of care determinations correctly made - 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. Relevant to this application, Mr Nesser and Ms Nesser are the parents of three children, [Child 1], [Child 2] and [Child 3] (born 2002, 2006 and 2007). This application concerns the children’s care arrangements from 21 September 2015. 

2. On 12 October 2015 the Department of Human Services – Child Support (the Department) accepted Ms Nesser’s application lodged on 21 September 2015 for child support and reflected the care of the children as 100% to Ms Nesser and 0% to Mr Nesser from 29 June 2015.

3. On 17 July 2019 Mr Nesser lodged an objection, stating that he had 100% care of [Child 3] from July 2015 and 100% care of [Child 2] and [Child 1] from August 2015 to 23 March 2016. He advised that the parties reconciled on 24 March 2016 to July 2017. On 4 February 2020 the Department disallowed his objection. 

4. Mr Nesser sought review of that decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) on 11 March 2020.

5. The matter was heard on 9 April 2020. Mr Nesser appeared by conference telephone. Ms Nesser declined the invitation to be added as a party to the proceedings. In reaching its decision the tribunal considered the sworn evidence of Mr Nesser as well as the documentation provided by the Department (folios 1–159).

6. On 15 April 2020 the tribunal issued an order, in accordance with section 95G of the Child Support (Registration and Collection) Act 1988 (the Registration Act), requesting that the Child Support Registrar provide the following information and documents:

   ·Please confirm whether letter/s outlining the notice of decision (identical to those in evidence sent to Ms Nesser on 12 October 2015 (at folios 16 to 19 of the hearing papers) and 7 November 2015 (at folios 21 to 31) were sent to Mr Nesser communicating the decision to accept the child support assessment application and the care percentage decision, both made on 12 October 2015;

   ·Please provide evidence of these letter/s to the tribunal (with no redactions);

   ·If such letter/s were sent please provide details/evidence of letters being returned to the Department (for example, on the basis that Mr Nesser did not reside at that address); and

   ·Please provide evidence of the address/es recorded for Mr Nesser from September 2015 to the present time.

7. The Department provided a response on 27 April 2020 (folios C1–C90), which were accepted into evidence. The tribunal reached its decision on the same day.

ISSUES

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

2. The issue which arises in this case is the children’s care percentage that is applicable for each parent in the administrative assessment from 21 September 2015.

CONSIDERATION

1. 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.

2. 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.

3. The Department’s record indicates that the parents were separated during the period 25 November 2002 to 7 May 2005 and from 29 June 2015 onwards. Ms Nesser advised the Department that she was collecting child support privately during the period 21 September 2015 to 18 October 2017. On 19 October 2017 Ms Nesser’s request for collection was granted from 19 July 2017. There are no written care arrangements, including court orders, in respect of the children’s care.

4. The tribunal must determine what the children’s care arrangements were from 21 September 2015. There have been subsequent care applications lodged by Mr Nesser that are not before the tribunal. Mr Nesser’s notifications regarding his care of the children are summarised as follows:

Date of Notification	Care change reported	Date of refusal
20 February 2018	100% care of [Child 2] from 20 February 2018, 50% care of [Child 3] from 8 June 2017	5 June 2018
10 June 2019	100% care of [Child 2] and [Child 3] from 14 May 2019	5 November 2019
9 July 2019	Reconciled from 24 March 2016 to 31 July 2017	21 September 2019

1. There is evidence before the tribunal to indicate that Mr Nesser was advised in writing of the 12 October 2015 decision (the original decision) to accept Ms Nesser’s registration for child support and to reflect the care of the children as 100% to Ms Nesser and 0% to Mr Nesser from 21 September 2015. This letter, and another sent on 7 November 2015 also notifying the children’s care were sent to Mr Nesser’s last known address ([specified]).

2. The child support record indicates that on 20 February 2018 a Departmental officer advised Mr Nesser verbally that Ms Nesser had applied for an assessment and was recorded as having the children solely in her care. There is no documentation to suggest that he objected to the decision until 2019.

3. Mr Nesser submits that when he and Ms Nesser separated in June 2015 [Child 3] lived with him for about a month and he would just have day contact with the other children. This changed when he secured his own unit, which coincided with Ms Nesser working at a [business] from 3am each morning and struggling in her care of [Child 2] and [Child 1]. From August 2015 he cared for all three children on a full-time basis until reconciliation in 2016.

4. The tribunal is not persuaded that Ms Nesser’s statements to the Department were credible. On 1 May 2018 she advised that Mr Nesser was homeless. The tribunal accepts Mr Nesser’s evidence that he has always had stable accommodation. The tribunal also accepts Mr Nesser’s statement that he has not held a passport for at least 15 years. This suggests that Ms Nesser’s statement on 21 September 2019 that Mr Nesser was working overseas (and therefore his statement that he had care of the children was false) was not accurate.

5. Though not relevant to this application, the tribunal makes the following observations regarding the matter of reconciliation in 2016. Ms Nesser had advised the Department that she and Mr Nesser did not reconcile at any time from July 2015. However, the text message evidence supports Mr Nesser’s assertion that the parents reconciled in about July 2016. Ms Nesser’s text message on 5 July 2016 asks when Mr Nesser is coming home, and that “I want to be with you”. A text message dated 1 August 2016 shows Ms Nesser using terms of endearment to Mr Nesser and asking what time he will finish work. In October 2016 she asks if he will watch a movie with her when she returns home and on 17 October 2016 she asks that he come to bed and that she misses and loves him.

6. The tribunal also notes that the care decision made on 5 November 2019 appears not to have taken into consideration Ms Nesser’s advice on 21 September 2019 that Mr Nesser had at least 30% care, or about four nights a fortnight, care of the children.

7. Mr Nesser provided four statements in support of his application. The first is from Mr [Mr A], dated 10 July 2019. [Mr A] stated that he has known Mr Nesser since November 2016, when he was living with Ms Nesser and the children. He stated that in July 2017 Mr Nesser and Ms Nesser separated and since that time [Child 2] and [Child 3] have spent their time equally between their parents’ homes. The second statement is from [Ms B]. She states that she has known Mr Nesser for over five years and can confirm that he had 50% care of [Child 2] and [Child 3] from July 2017 and 100% care of them since 30 April 2019. [Ms B] also stated that she was aware that prior to July 2017 he and Ms Nesser were living together. The tribunal concluded that these statements did not assist the tribunal’s enquiry, as they do not refer to the care arrangements from September 2015.

8. The third statement is from [Ms C], dated 10 July 2019. She states that she has known Mr Nesser for over four years and was aware of the children living with him on a full-time basis from July 2015 to March 2016. She went on to state that [Child 3] and [Child 2] were cared for by Mr Nesser 50% of the time during the period July 2017 to April 2019. This statement is consistent with Mr Nesser’s testimony.

9. The final statement is dated 2 February 2019, authored by [a named official from a sports] Club. She states that [Child 3] was enrolled in the club from 2016 to 2019 and [Child 1] in 2017 only. She confirmed that Mr Nesser takes the children to and from training and matches as well as meeting all expenses associated with their enrolment. The tribunal is of the view that this letter does not assist Mr Nesser’s application as it does not indicate the actual care arrangements from September 2015 or soon thereafter.

10. As stated above, section 49 of the Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar (or this tribunal on review) is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child during the relevant care period, the Registrar must determine that person’s percentage of care for the child during the care period.

11. In matters such as these, it is difficult to ascertain care arrangements that were in place five years previously, where there was only contemporaneous evidence provided by one parent. Ms Nesser asserted in September 2015 that she had sole care of the children. The tribunal has determined that Ms Nesser’s evidence to the Department on later dates is problematic.  Mr Nesser states that he had 100% care of the children. He has a letter from a friend supporting this assertion generally, though there is a discrepancy between when this 100% care began. The tribunal is satisfied that he was advised of the decision that the care record reflected that Ms Nesser had 100% care of the children and he did not formally object to that decision until 2019.

12. On balance, the tribunal is not sufficiently persuaded that the children’s care arrangements on 21 September 2015 were other than as declared by Ms Nesser. The tribunal concludes that the children’s care arrangements are correctly reflected in the care register from 21 September 2015. Therefore, Mr Nesser’s application to amend the care record from 21 September 2015 is refused. This means that the decision under review is correct.

DECISION

The decision under review is affirmed.