Pender and Pender (Child support)

[2021] AATA 4231

Pender and Pender (Child support) [2021] AATA 4231 (31 August 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2021/BC021471 & 2021/BC021472

APPLICANT:  Ms Pender

OTHER PARTIES:  Child Support Registrar

Mr Pender

TRIBUNAL:Member C Breheny

DECISION DATE:  31 August 2021

DECISIONS:

The decision that Mr Pender and Ms Pender had 50% care each of [Child 1] from 4 August 2020 is set aside and a decision substituted that no care change occurred on 4 August 2020 and Ms Pender continued to have 80% and Mr Pender had 20% care of [Child 1].

The decision that Mr Pender has 100% care of [Child 1] from 5 October 2020 is set aside and a decision substituted that Mr Pender has 86% and Ms Pender has 14% care of [Child 1] from 27 August 2020.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determination revoked and new determination made – other care change refused – highly disputed evidence – decisions 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. Ms Pender and Mr Pender are the separated parents of [Child 1], born September 2006. There is another child, [Child 2], not subject to this review. A child support case has been registered with Services Australia (formerly the Department of Human Services) – Child Support (Child Support) since 6 January 2017, and child support has been payable on the basis that Ms Pender had 80% and Mr Pender had 20% care of [Child 1]. This arrangement was formalized in court orders made on 15 February 2019. Mr Pender is liable to pay child support to Ms Pender.

2. On 24 August 2020 Mr Pender contacted Child Support and advised that [Child 1] wished to spend more time with him such that each parent now had 50% shared care from 1 August 2020. On 3 September 2020 Mr Pender notified a further care change such that he now had 100% care of [Child 1] from 27 August 2020. Ms Pender disputed the care changes and noted that Mr Pender was withholding care.

3. On 17 October 2020 two decisions were made: 1) that Mr Pender and Ms Pender had 50% care each of [Child 1] from 4 August 2020 and 2) that Mr Pender had 100% care of [Child 1] from 5 October 2020.

4. On 22 October 2020 Ms Pender objected to both decisions and on 13 April 2021 a Child Support objections officer decided to disallow the objections.

5. On 11 May 2021, Ms Pender applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal for independent reviews of the objection decision in relation to care from 4 August 2020 (review 2021/BC021471) and the objection decision in relation to care from 5 October 2020 (review 2021/BC21472). The applications were heard on 31 August 2021. Ms Pender and Mr Pender attended the hearing by conference telephone and gave evidence on affirmation. [Ms A] attended the hearing as a witness for Mr Pender and gave evidence on affirmation. A representative of the Child Support Registrar did not attend the hearing.

6. I had before me the Statement and Documents provided by Child Support pursuant to section 37 and section 38AA of the Administrative Appeals Tribunal Act 1975, received on 10 June 2021 and 16 July 2021 respectively (two bundles of documents numbered 1–560 each for review 2021/BC021471 and for review 2021/BC021472). I note the documents bundles are identical. For ease of reference page numbers below refer to pages in the document bundle provided for review number 2021/BC021471.

7. I also considered evidence provided by Ms Pender, marked A1–A43 and by Mr Pender, marked B1–B25.

ISSUES AND 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 require consideration of the actual, or likely, pattern of care that the parents will have in relation to the children. Section 54F of the Act provides that an existing care percentage decision must be revoked if Services Australia is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that a care change would alter the cost percentage used for the parent in the administrative assessment. Section 55C of the Act contains a table that is used to work out a person’s cost percentage.

3. In this case, departmental records indicate that since 6 January 2017, child support liability had been calculated on the basis that Ms Pender had 80% and Mr Pender had 20% care of [Child 1] (folio 522). Records also show that Mr Pender contacted Child Support on 24 August 2020 to advise that both parents had 50% shared care of [Child 1] from 1 August 2020 (folio 36) and that Mr Pender notified on 3 September 2020 that he now had 100% care of [Child 1] from 27 August 2020 (folio 39).

Ms Pender’s evidence

1. Ms Pender submitted that it was simply not true that care for [Child 1] changed in August 2020. She agreed that [Child 1] could spend additional nights with Mr Pender but this was in accordance with the court orders made in 2019.

2. Ms Pender stated that court orders (folios 57–61) provided for Mr Pender to have care for two nights on a weekend every four weeks during school term, plus one night on Wednesday every four weeks during school term. He also has half of the three term holiday periods and two weeks during the long Christmas break.

3. Ms Pender noted that court orders were generally followed prior to August 2020. She said that the orders include a notation to the effect that if a child should express the wish to spend more time with the father, that wish should be implemented, if possible.

4. Ms Pender stated that [Child 1] asked to spend more time with Mr Pender in August 2020, and she agreed to implement his wish. This was only a temporary arrangement however and did not constitute a care change.

5. Ms Pender further submitted that Mr Pender’s care did increase from about October 2020, but she continued to have some care of [Child 1]. Thus, the decision that Mr Pender had 100% care of [Child 1] was incorrect. She probably had about 20% care from that time and Mr Pender had 80% care.

Mr Pender’s evidence

1. Mr Pender submitted that court orders had not been followed for some time. The orders pertained to both children and he had not had any care of his daughter for a long time. He also did not have [Child 1] in his care during the 2020 Christmas/New Year period and he missed a lot of care due to the COVID-19 pandemic.

2. Mr Pender stated that [Child 1] decided he wanted to spend more time with him (Mr Pender). [Child 1] had made this decision and his wish should be accepted. Mr Pender said that [Child 1] initially wanted to spend equal time with both parents on an ongoing basis. That is why he notified Child Support that both he and Ms Pender had 50% shared care.

3. Ms Pender did not agree to this care change and [Child 1] then decided not to return to his mother’s care. This is when he (Mr Pender) notified the second care change. Mr Pender said that [Child 1] did not spend any time with Ms Pender after 5 October 2020 until 26 December 2020.

4. Mr Pender said that he did not need a diary to record [Child 1]’s movements, as [Child 1] stayed with him in that time. He noted that Ms Pender only provided her handwritten diary and no other evidence supporting her claim.

[Ms A]’ evidence

1. [Ms A] stated that she is Mr Pender’s fiancée and ordinarily resides with him, although she is currently in lock-down in NSW.

2. [Ms A] said that [Child 1] expressed a wish to spend more time with his father. She and Mr Pender emailed Ms Pender to seek her permission for [Child 1] to have 50% equal shared care with both parents on an ongoing basis. Ms Pender did not agree to this arrangement. [Child 1] was disappointed with his mother’s decision and decided to stay with Mr Pender.

3. Apart from a short holiday with his mother to Cairns in September/October 2020, [Child 1] did not stay overnight at his mother’s home until 26 December 2020. He had some phone contact with Ms Pender but did not go to her home. [Ms A] noted that she commenced keeping a diary on her computer once it became apparent that [Child 1] was going to spend some time with Ms Pender again. As an extra precaution she would also email Ms Pender the dates that [Child 1] was going to stay with her, so that there would be no confusion in the future.

4. [Ms A] acknowledged that Ms Pender provided text messages wherein [Child 1] confirms that he will be staying with Ms Pender on certain dates, but [Child 1] would change his mind and not go anyway. Thus text messages were not necessarily an accurate reflection of what actually occurred.

Ms Pender: additional evidence

1. Ms Pender provided copies of her handwritten diary (relevantly) from the beginning of August 2020 to 25 October 2020 (folios 158–170). According to those entries she had care of [Child 1] from:

   ·1–3 August 2020, from 6–9 August 2020, and from 17–20 August 2020 (11 nights in August 2020);

   ·26–30 September 2020 and 1–5 October 2020 (9 nights in September/October 2020).

2. Further (relevant) diary entries commence from 23 November 2020 to 3 January 2021 (folios 363–368). According to those entries Ms Pender had care from:

   ·27–29 November 2020 (three nights in November 2020);

   ·5–6 December 2020, from 9–10 December 2020, from 18–20 December 2020 and from 25–27 December 2020 (10 nights in December 2020).

3. Ms Pender provided text messages between her and [Child 1] (folios A5–A7):

   ·dated 26 September 2020 at 8:52pm stating “I’m so excited that you’re coming home tomorrow and we get to hang out…”,

   ·dated 27 November 2020 at 8:25pm stating “[Child 2] tells me you’re coming home tomorrow…”,

   ·dated 9 December 2020 at 12:20pm stating “Do you want me to pick you up after school…”,

   ·dated 18 December 2020 at 11:32am (from [Child 1]) “Morning mumma, what time are you coming to get me?”

Mr Pender: additional evidence

1. Mr Pender provided notes from [Ms A] (folio 462) indicating that they had [Child 1] in their care on 4, 10, 12 and 13 August 2020, from 16 August 2020 to 27 September 2020 and from 5 October 2020 continuously.

2. A further “timetable” indicates that [Child 1] spent one night with Ms Pender on 26 December 2020 and two nights on 7–8 January 2021 (folio 461).

3. An undated and unsigned statutory declaration from Mr Pender stating that [Child 1] did not spend any nights with Ms Pender between 5 October 2020 and 26 December 2020 (folio 457).

Further evidence

1. The following emails are also relevant:

   ·On 17 August 2020 Mr Pender writes (folio B12):

   [Child 1] has expressed that he wants to have the 12 nights of my roster that I have out of          the 28 days to stay with us from now on. This just needs to happen…because if you try   stop him he will just take off and come here anyway now…

   Please agree that [Child 1] will now spend the 12 nights out of my 28-day roster at our place       in Tugun from now on and any extra time that [Child 1] wishes to spend will be agreed to if      [Child 1] asks for that extra time as well…

   We will draw up a new visitation agreement so that [Child 1] knows that his wishes are being      met and he knows exactly where he will be each day of the week…

   ·On 20 August 2020 Ms Pender replies (folio A21):

   Hi [Mr Pender], [Child 1]’s keen to see you on your 12 days off and I’m supportive of that. He wants      a bit of flexibility for special occasions etc.”

   ·On 21 August 2020 Mr Pender writes (folio A22):

   Thankyou [Ms Pender] for confirming that [Child 1] will now be staying with us 12 nights out of      every 28 now. We have also kept a record of all the extra nights that we have had [Child 1]           this year and we will continue to keep the Child Support Agency updated so they can      adjust payments accordingly.”

   ·On 22 August 2020 Mr Pender further states (folio A22):

   [Child 1] has asked to stay with us until the 27 of August 2020, we will drop him back to you      before school at 7:30am. [Child 1] has also asked to stay with us from Monday the 31^st of      August, you can drop him back to us at 4pm…

   As per our new visitation agreement 12 nights out of 28 nights [Child 1] will be with us and          any extra time [Child 1] requests like this coming week.

   ·On 1 September 2020 Mr Pender writes (folio B17):

   [Ms Pender], [Child 1] has told us that he will not be coming back to your house in the foreseeable      future…

   ·On 3 September 2020 Mr Pender and [Ms A] state (folio B14):

   [Ms Pender], we have just spoken to the Child Support Agency and they will be    contacting you      regarding the new care arrangement for [Child 1] now that he is in our care 100% of the   time for the foreseeable future…We have also told them that [Child 1] does wish to start seeing you and his sister again and we will fully support his decision and      right to do so.    He has expressed to us that it would be more like 80% with us and 20% with you which   he has already told you…

   ·On 15 November 2020 Ms Pender writes (folio 389):

   [Child 1] is welcome to collect his things. His sister and I miss him greatly. You totally     disregarding the Court orders that he lives with me and encouraging him to cut all           contact…I will not support it.

   ·On 15 November 2020 Mr Pender replies (folio 388):

   We have spoken to [Child 1] and he said that he has made his wishes known to you       that he just needs his own space at the moment to figure out what is in the best interest for himself now. [Child 1] does not want to come to your home at this stage…

   ·On 14 January 2021 Mr Pender and [Ms A] state (folio 386):

   [Mr Pender] is under no obligation to pay for school uniforms or schooling needs for the    children…We will need to take [Child 1] to get his uniform next week…

   ·On 14 January 2021 Ms Pender replies (folio 386):

   Unfortunately you have misinterpreted the Orders… As far as requesting that I purchase uniforms for [Child 1], now that you have falsely claimed to Child Support that [Child 1] resides     with you 100% of the time, [Child 1] is no longer my dependant and I have no legal (or     moral) obligation to contribute to his school fees…I have already confirmed my   obligations with my lawyer…I suggest you do the same and seek proper legal advice. If you do, you will be told that the Child Support Agreement no longer applies to [Child 1]     given that he is now living with you.

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). Child Support’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. I will note here that there is considerable dispute between the parties. Both insist that their evidence is correct and that the other is providing “false information”. Neither party provided any additional evidence from independent third parties to support their contentions. Whilst [Ms A]’ provided a statement in support of Mr Pender, I am of the view that as his partner, she would naturally be inclined to be supportive of him and not be an independent observer in this case.

The care change from 4 August 2020 (50% care each)

1. Mr Pender initially notified Child Support on 24 August 2020 that [Child 1] wanted to spend more time with him and that the parents had agreed to 50% shared care from 1 August 2020. Ms Pender disputes that there had been a care change.

2. She submitted to Child Support on 15 September 2020 (folio 52) that she never agreed to amending the court orders. She was aware that [Child 1] wished to spend extra time with Mr Pender, whilst Mr Pender was on leave, and she accommodated this wish. She noted that Mr Pender was on a three-week holiday from work and the last week (to 26 September 2020) coincided with Mr Pender’s actual school holiday care. She thus only allowed for some additional care on a “once-off” basis. Ms Pender noted that she made this clear in her email of 20 August 2020.

3. I disagree with Ms Pender’s interpretation. Mr Pender’s initial email of 17 August 2020 makes it clear that he is seeking 50% care of [Child 1] on an ongoing basis. Mr Pender works on a four-week (28 day) roster, and he asked for [Child 1] to spend half of that time, i.e. 12 days out of every 28 days with him.

4. Ms Pender simply replied that [Child 1] was wanting to see Mr Pender “on his 12 days off” and she was supportive of that. Mr Pender interpreted this to mean that Ms Pender had agreed to the 50% shared care arrangement (i.e. 12 days out of 28 days) and notified Child Support accordingly.

5. It appears that neither party actually “heard” the other person’s arguments, but simply interpreted the emails from their own perspective. There was no request for a temporary care change for holidays in September 2020 but there was also no clear agreement from Ms Pender that [Child 1] could stay with his father for two weeks out of every four weeks on an ongoing basis.

6. I am thus persuaded that no care change occurred on or about 24 August 2020 such that the existing care percentage ought to be revoked. I will therefore set aside that particular objection decision.

   The care change from 27 August 2020 (100% care to Mr Pender)

7. Mr Pender notified Child Support on 3 September 2020 that he now had 100% care of [Child 1] from 27 August 2020. This is indicated in the emails sent by Mr Pender on 1 September 2020 and 3 September 2020 and there appears to be a significant reduction in Ms Pender’s care from that time.

8. I will note here that on 28 May 2021 Child Support made a new care determination such that Ms Pender had 17% and Mr Pender had 83% care from 26 December 2020. Thus, the most appropriate relevant care period in relation to this care change would be the period of 121 days from 27 August 2020 to 25 December 2020.

9. Based on the email evidence it appears that once it became clear that Ms Pender did not agree to 50% shared care, [Child 1] decided to stay with Mr Pender for a while, as foreshadowed in the email of 17 August 2020.

10. Both parties agree that [Child 1] spend nine nights with Ms Pender from 26 September 2020 to 5 October 2020, as they went on holidays to Cairns. Mr Pender is adamant that [Child 1] did not spend any other time with Ms Pender until 26 December 2020. Ms Pender is equally adamant that she had [Child 1] in her care for another 13 nights in November and December 2020 and thus Mr Pender did not have 100% care from 27 August 2020.

11. I have calculated, based on Ms Pender’s diary entries that she had 20 nights (or 16%) care in the period 27 August 2020 to 25 December 2020. I am not convinced however that her diary entries are entirely accurate.

12. According to her diary, Ms Pender had [Child 1] in her care on 26 September 2020. The text message dated 26 September 2020 (in the evening) however states that she is excited to see [Child 1] “tomorrow” (27 September). Similarly, the text message dated 27 November 2020 notes that her daughter told her that [Child 1] was coming to see them “tomorrow” (28 November), though Ms Pender notes in her diary that [Child 1] was in her care on 27 November 2020.

13. I note that [Ms A], on behalf of Mr Pender, submitted that [Child 1] did not stay with Ms Pender on 5 and 6 December 2020 ([Child 2]’s dance party). [Ms A] noted that [Child 1] may have said that he was going to the party, but he ultimately changed his mind. I do not have any further supporting evidence in this regard, however.

1. Based on the limited (and highly contested) evidence before me, I will find that a care change did occur from 27 August 2020. I do not accept that care in September 2020 was based on Ms Pender’s agreement for [Child 1] to stay whilst Mr Pender was on vacation. There is no evidence that this was ever discussed.

2. I also do not accept that Mr Pender was withholding care, as it appears that [Child 1] (being 15 years old) made his own decision where he wanted to stay.

3. Overall, however, I will accept and find, based on diary entries and text messages, that Ms Pender had some care of [Child 1] in the period under review and that this care amounted to 18 nights or 14%. I will therefore also set aside the second objection decision and substitute my decision accordingly.

DECISIONS

The decision that Mr Pender and Ms Pender had 50% care each of [Child 1] from 4 August 2020 is set aside and a decision substituted that no care change occurred on 4 August 2020 and Ms Pender continued to have 80% and Mr Pender had 20% care of [Child 1].

The decision that Mr Pender has 100% care of [Child 1] from 5 October 2020 is set aside and a decision substituted that Mr Pender has 86% and Ms Pender has 14% care of [Child 1] from 27 August 2020.