Ogden and Child Support Registrar (Child support)

[2019] AATA 2519

Ogden and Child Support Registrar (Child support) [2019] AATA 2519 (28 May 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/MC015359

APPLICANT:  Mr Ogden

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member J Thomson

DECISION DATE:  28 May 2019

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that there was no change in care for [Child 1] from 4 July 2018.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – child residing with other parent interstate for a holiday period - decision under review set aside and substituted

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. Mr Ogden and Ms [A] are the parents of [Child 1], born 2001. [Child 1] turned 18 [in] January 2019.

2. Mr Ogden seeks review of an objection decision made by the Department of Human Services – Child Support (the Department) on 27 October 2018. This decision disallowed his objection to an earlier Department decision dated 14 August 2018 to accept Ms [A’s] application for a change to the care percentages for [Child 1], and record Ms [A] as having 100% care and Mr Ogden as having 0% care of [Child 1] from 4 July 2018.

3. The Tribunal heard the matter on 5 February 2019. Mr Ogden attended the hearing via conference telephone and gave affirmed evidence. Ms [A] elected not to participate in the hearing. The Tribunal had before it documents provided by the Department. Mr Ogden acknowledged he had received copies of these documents from the Department, but did not have them with him at hearing. He was content for the hearing to proceed in any event. Those documents were admitted into evidence and marked Exhibit 1.

4. At the conclusion of the hearing, the Tribunal allowed him 7 days in which to provide copies of text messages passing between [Child 1] and her [sibling], [Child 2] relevant to the level of support being provided by Ms [A]. Mr Ogden has not provided that material .

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence on Mr Ogden given at the hearing and the documents provided by the Department, Exhibit 1.

2. The law relevant to care percentage determinations is found in the Child Support (Assessment) Act 1989, (the Act). Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies, relevantly, if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 applies, relevantly, if the parent “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Both sections reflect the idea that the Department makes point-in-time care decisions on the basis of what has happened up until the 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 and a new care determination can be made. However, the legislative test at first instance and on review remains the same: what has happened until the date of the notification and what was likely to happen thereafter?

3. Prior to Ms [A] notification of a change in care on 27 July 2018, the care percentages being assessed by the Department were 100% to Mr Ogden, and 0% to Ms [A].

4. Mr Ogden’s case at hearing was that up until 4 July 2018, [Child 1] had been living with him at his home in [City 1], and was studying for a [degree]  at the [College], and was in his 100% care.

5. A disagreement between him and [Child 1] had arisen when he became aware that [Child 1] had failed her [course] at the [College], but had failed to inform him, and as a consequence, [Child 1] left his house, and went to stay with her mother, Ms [A], who was residing with her boyfriend in [City 2].

6. Mr Ogden said he was informed by his [Child 2] (who was also residing in [City 2] in a flat with her boyfriend when [Child 1] went to live with Ms [A] following the disagreement with Mr Ogden on 4 July 2018) that [Child 1] had only stayed with her mother for a period of 2 weeks. He said [Child 2] informed him that [Child 1] had complained that she had to sleep on the floor at her mother’s address in [City 2] because it had only one bedroom which was occupied by Ms [A] and her boyfriend.

7. Mr Ogden said that [Child 2] informed him that she and her boyfriend had broken up at about the time [Child 1] came to [City 2] to stay with her mother, and as a consequence, [Child 2] was able to offer accommodation to [Child 1], when it became apparent that she could no longer stay at her mother’s boyfriend’s residence.

8. Mr Ogden also said that [Child 2] informed him that Ms [A] had not been able to provide either [Child 2] or [Child 1] with any financial support while they were in [City 2], and they were struggling financially to maintain themselves. Mr Ogden gave evidence that he was aware of Ms [A’s] financial circumstances at that time; he said he was aware she was unemployed, and because she had been the parent responsible for paying child support to Mr Ogden for [Child 1] up until [Child 1] went to live with her mother on about 4 July 2018, he had instructed the Department not to collect child support from Ms [A].

9. He also gave evidence that when [Child 1] left his house on about 4 July 2018 to stay with her mother in [City 2], she had only taken a back-pack of clothes and other necessaries, and the bulk of her possessions had remained at his home in [City 1].

10. Mr Ogden provided a copy of a text message from Ms [A] sent to him [in] July 2018 informing him, relevantly, that [Child 1] was safe and with her in [City 2], that she was not sure of her plans from that point onward, and that for the moment, [Child 1] was on holidays (see page 48 of Exhibit 1). Mr Ogden said he received a similar communication from his [Child 2] when [Child 1] went to live with her in [City 2], suggestive that [Child 1]’s move to [City 2] was not a permanent arrangement. However, he was unable to provide a copy of that text message.

11. Mr Ogden gave evidence that [Child 1] returned to live with him on 12 November 2018, and that, as a consequence of his notification of a further change in care for [Child 1] on 19 November 2018, the Department made a new care decision on 18 December 2018 to record Mr Ogden as having 100% care of [Child 1] from 16 November 2018 (see page 82 of Exhibit 1).

12. Ms [A] did not attend the hearing to challenge Mr Ogden’s evidence.

13. The Tribunal finds that the evidence, on balance, is that [Child 1] left Mr Ogden’s house following a disagreement on about 4 July 2018 and went to stay with her mother in [City 2] on a temporary holiday basis for a holiday period of approximately 2 weeks, following which she went to stay with her sister, [Child 2] who also resided in [City 2] at that time, on a similar holiday basis, subsequently returning to live with Mr Ogden at his home in [City 1] on 12 November 2018.

14. The Tribunal therefore finds there was no intention on [Child 1]’s part to permanently live with her mother, Ms [A], or her sister, [Child 2] in [City 2], and, consequently, there was no change in care on 4 July 2018.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that there was no change in care for [Child 1] from 4 July 2018.