PXYP and Child Support Registrar (Child support second review)

[2024] AATA 1093

PXYP and Child Support Registrar (Child support second review) [2024] AATA 1093 (16 May 2024)

Division:GENERAL DIVISION

File Number(s):      2023/4969

Re:PXYP

APPLICANT

AndChild Support Registrar

RESPONDENT

AndNQTV

OTHER PARTY

DECISION

Tribunal:Senior Member Dr N A Manetta

Date:16 May 2024

Place:Adelaide

The Tribunal sets aside the Level 1 decision of this Tribunal and substitutes the following decision; namely:

(a)The percentage of care determinations for the period 1 June 2022 to 31 January 2023 in respect of the child ‘K’ be revoked; and

(b)In lieu thereof, it be determined that during this period the Applicant had 100% care of ‘K’ and the Other Party 0% care of ‘K’; and

(c)The date of effect of this decision is 1 June 2022. 

………………[sgnd]…………….

Senior Member Dr N A Manetta

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.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the pattern of care – conflicting evidence – child clearly reluctant to spend time with one parent – interpretation of evidence before the Tribunal – decision under review set aside and change in the percentage of care decision substituted

LEGISLATION

Child Support (Assessment) Act 1989 (Cth)

REASONS FOR DECISION

Senior Member Dr N A Manetta

16 May 2024

1. This is an application by ‘PXYP’, the mother of a child named ‘K’, and to whom I shall refer as ‘the Applicant’.  The Applicant seeks a review of a Level 1 decision of this Tribunal. This decision affirmed an earlier decision made by an officer in Services Australia not to change the existing percentage-of-care determination in respect of the Applicant’s care of K.  This determination had been made under the Child Support (Assessment) Act 1989 (Cth) (‘the Act’). The Applicant seeks a change from 72% care to 100% care for the period from 1 June 2022 to 31 January 2023.[1]  K’s father, ‘NQTV’, also appeared at the hearing before me, and he opposed the change.  I shall refer to ‘NQTV’ as ‘the Other Party’ in these reasons.  Both the Applicant and the Other Party represented themselves.

   [1] Ex R2, 5-9.

2. I acknowledge the assistance of Ms Smith, who appeared for the Respondent in this matter.

   BACKGROUND FACTS

3. The Applicant and the Other Party had a number of children together, but have been separated for some considerable time.  K was born to them in December 2007.  

4. Child support in respect of K commenced on 1 May 2015.    From 18 December 2021, the child-support determination reflected the Applicant having 72% care of K, while the Other Party had 28% care.[2]  The Applicant applied for a change of this determination on 23 June 2022, and she claimed that she had had 100% care of K with effect from 1 June 2022.  The Other Party disputed this assertion, and he claimed that he had regular care of K, although there was no set pattern. In due course, the existing 72-28 percentage split was confirmed; and finally, on review, this Tribunal (at Level 1) affirmed that this split was appropriate on 2 June 2023.  The matter has now proceeded to a further review in this Tribunal (at Level 2).

   [2] Ibid, 104.

5. The Other Party conceded before me that he has not had any care of K since 23 December 2022.  A new determination has been made that reflects this concession, but it was operational from 1 February 2023 only, the date of the Other Party’s notification to Services Australia to this effect.[3]  The Other Party further concedes that he did not have care of K from 18 August 2022 to around 4 September 2022.  During this time K was convalescing from an accident. 

   [3] Ibid, 196.

6. The Applicant maintained before me that she has had 100% care of K from 1 June 2022 onwards, and for every night of the period from 1 June 2022 to 31 January 2023 (with the exception of one or possibly two nights at most during this period).  The Other Party maintained his earlier position that while there was no set pattern, he had regular care of K over this period, and that this amounted to 28% of care (in line with the existing care determination); but, as noted, he accepted that he did not have care from 18 August 2022 to 4 September 2022 and has not had any care from 23 December 2022 onwards. 

7. The Applicant and the Other Party agree, therefore, that the Applicant currently has 100% care of K.  They disagree, however, as to the date on which that pattern of care began; the Applicant maintaining that it began on 1 June 2022, the Other Party maintaining that it began on 23 December 2022. 

   CRITICAL QUESTION OF FACT FOR THE TRIBUNAL 

8. I must decide whether the Applicant has satisfied me that there was a change in the pattern of care commencing on 1 June 2022.  I accept the Other Party’s submission that I should not make a change to the existing care determinations unless I am satisfied that the Applicant is correct in her contention.

9. The advantage the Tribunal has is that it can look at the matter in retrospect and decide whether the Applicant’s claim that there was a change in the pattern of care commencing on 1 June 2022 is borne out and accurate.   

   STATEMENT OF CONCLUSION

10. I have decided that I am satisfied that the Applicant is correct in her assertion that there was a change in the pattern of care and that she had 100% care of K in the period from 1 June 2022 to 31 January 2023.  My reasons for this conclusion follow.  As the parties were not represented, I shall express myself briefly.

    REASONS

11. The Applicant presented her evidence in a straightforward and apparently truthful manner.  I had less confidence in the Other Party’s evidence for reasons I shall explain in due course.  That is an important aspect of the matter, although not decisive. 

12. The Applicant was clear that there were at most two nights in the period from 1 June 2022 to 31 January 2023 in which she did not have care of K. She was in no way vague or uncertain.  I formed the view that her evidence was honestly given.     

13. Most importantly, there are two independent corroborative facts supporting the Applicant’s assertions.  First, I note a Family Court minute of order (dated 24 December 2021 and made final on 11 January 2022) in respect of access rights.[4]  The minute of order makes clear that the Other Party was, broadly speaking, entitled to access in respect of each of five children, including K, on a basis of five nights per fortnight.  This amounts, in fact, to some 35% care. 

    [4] Ibid, 84ff.

14. There are a number of notations at the end of the order, however.  Notation A provides specifically that K and another child (T) ‘have at times shown some reluctance to spend time’ with the Other Party and ‘have not attended all visits to date’.  It is expressly recorded that the Other Party ‘has respected the children’s wishes’ in this regard.  Notation B goes on to provide that the parties agree to ‘use their best endeavours to encourage T to attend visits’ with his father; but there is no such obligation in respect of K.  

15. The Notations are inconsistent with the Other Party’s evidence to me that he enjoyed a very positive relationship with K (right up to 23 December 2022) and that K enjoyed spending time with him.  The Notations make clear, in my opinion, that K has at times shown reluctance to spend time with the Other Party and that the Applicant and the Other Party had agreed that there was to be no obligation on either of them to encourage K to spend time with the Other Party against his wishes.

16. Secondly, I have a statement before me from K’s teacher.[5]  This statement, dated 12 July 2022, was requested by the Applicant.  It provides in part as follows:

    My name is [omitted] and I am the program coordinator for the Compass program - a re-engagement unit taught at [omitted] College.  I am also [K]’s main room teacher. This is a statement requested by [the applicant] to inform you of my knowledge relating to [K]’s care arrangements.  From what [K] has shared with me, he has told me that he only spends time with his Father to go dirt bike riding.  [K] has spoken about not sleeping much when with his father and previously sleeping in a tent/camping, which makes him tired and this impacts his ability to focus and concentrate at school.

    [K] talks about his Father taking him dirt bike riding in the early morning hours or on weekends but has stated that he rarely stays overnight.  It is my belief that K has not  stayed overnight regularly for quite some time. I am regularly in contact with [K]’s Mum, [the applicant], who is always the parent I have witnessed picking [K] up and dropping him off at school. On many occasions when I have requested additional support for [K] from home it is always [K]’s mother who attends school/takes [K] home. I know [K] has had a difficult relationship with his father in the past from what [K] has told me.      

    [5] Part of Ex A1.

17. This statement provides credible corroboration for the Applicant’s contentions. It contradicts the Other Party’s submission to me that he and K enjoyed a positive relationship, and that K slept overnight on a significant number of occasions at his home. I accept that the statement does not address the situation after mid-July; but, together with the Family Court’s order, it provides relevant background information to the situation after mid-July. 

18. Overall, I have concluded there was clearly some reluctance on K’s part to spend time with the Other Party as of mid-July 2022, and encouraging K to send time with the Other Party was agreed not to be an obligation of either the Applicant or the Other Party from the beginning of 2022.  K had also reported to his teacher that he had had a difficult relationship with the Other Party in the past.

19. I asked the Other Party why there was a permanent change in his relationship with K as of 23 December 2022, the date on which he maintained he ceased to have any care at all of K.  The Other Party said in his evidence to me that there had been a major family argument at Christmas time, and from that time, K had not wanted to spend time with him. The Other Party acknowledges in his statement dated 30 October 2023 that both K and T have in fact ceased to have any relationship with him.[6]   There may well have been a major family argument; but the absence of any later reconciliation is strange if the relationship between the Other Party and K had been as positive in the past as the Other Party suggested it was.   

    [6] Ex OP1.

20. All in all, I am satisfied on the evidence before me that in the period from 1 June 2022 to 31 January 2023, the Applicant had 100% care of K. I am satisfied that there was a change in the pattern of care commencing on 1 June 2022, as asserted by the Applicant, and that this pattern has continued from that time on. I am also satisfied that, in line with the Family Court’s order, the Other Party decided to respect K’s choice not to sleep overnight at the Other Party’s home. I am further satisfied that the Applicant did not oppose the Other Party’s access and that she ‘made K available’ to the Other Party for the purposes of section 54G(1)(b) of the Act. I do not accept the Other Party’s assertion to the contrary in his statement.[7] The Applicant’s notification to Services Australia occurred within a reasonable time of the commencement of the change in the pattern of care in my opinion. It follows, in my view, that the conditions set out in section 54G of the Act have been fulfilled and that the existing care determinations should be revoked. The date of effect of my decision will be 1 June 2022.

    [7] Ex OP1.

    FORMAL DECISION

21. Strictly speaking, I am reviewing a Level 1 decision of this Tribunal.  The decision I shall make is to set aside the Level 1 decision and substitute a decision that the care determinations under review before the Level 1 Tribunal be set aside, and that a decision be substituted that the Applicant had 100% care of K and the Other Party 0% care in the period commencing 1 June 2022 and ending 31 January 2023. 

22. I note again that from 1 February 2023, it is accepted by both the Applicant and the Other Party that the Applicant has had 100% care of K and that an existing determination reflecting this fact is presently in force with effect from 1 February 2023.  This explains the end date of 31 January 2023 in my substituted decision.

23. I have numbered the exhibits before me as follows:

    ·Respondent’s Statement of Facts Issues and Contentions              Ex R1

    ·‘T’ Documents lodged by Respondent  Ex R2

    ·Applicant’s bundle of Documents filed 22.10.23  Ex A1

    ·Applicant’s further bundle of Documents filed 9.11.23  Ex A2

    ·The Other Party’s statement filed 30.10.23  Ex OP1  

    I certify that the preceding twenty-three (23)

    paragraphs are a true copy of the reasons

    for the decision herein of Senior Member

    Dr N A Manetta

    ……[sgnd]………………………..
    Associate

    Dated: 16 May 2024

    Date of hearing:  15 March 2024

    Advocate for the Applicant:      Self-Represented

    Advocate for the Respondent:  Donna Smith

    Services Australia  

    Advocate for the Other party:  Self-Represented