RNJN and Child Support Registrar (Child support second review)

[2021] AATA 2361

RNJN and Child Support Registrar (Child support second review) [2021] AATA 2361 (14 July 2021)

Division:GENERAL DIVISION

File Number(s):      2020/0629

Re:RNJN

APPLICANT

AndChild Support Registrar

RESPONDENT

AndPJGY

OTHER PARTY

DECISION

Tribunal:Senior Member B J Illingworth

Date:14 July 2021

Place:Adelaide

The decision under review is affirmed.

..........................[SGND]...........................

Senior Member B J Illingworth

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 – Whether there was a change in the care percentage of the child –Assessment of actual care – Whether changes to care arrangement – The father’s evidence preferred – Decision under review affirmed

Legislation

Child Support (Assessment) Act 1989 (Cth).

Child Support (Registration and Collection) Act 1988 (Cth).

Cases

Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

Secondary Materials

Guides to Social Policy Law – Child Support Guide, version 4.57, 1 July 2021.

REASONS FOR DECISION

Senior Member B J Illingworth

14 July 2021

Introduction

1. The applicant and the other party are the separated parents of two boys. Their eldest son was born in May 2000. This application relates to the percentage of care that each had of their youngest son born in October 2002 (the child).

2. From December 2016, a care determination provided that the applicant had 56% and the other party had 44% of the care of the child.

3. On 3 May 2019, the applicant advised Services Australia (formerly known as the Department of Human Services) (the Agency) that she had the majority of the child’s care, namely 300 nights of care per year (83%), and the other party had 64 nights of care per year (16%). This, she said, had been occurring since 1 December 2018.

4. The Agency contacted the other party who advised there was no change in the care arrangement. He said that he had care of the child three nights a week, namely from Thursday night to Sunday, and half of the school holidays.

5. On 24 June 2019, the Agency rejected the applicant’s claim for a change in the care percentage.

6. On 11 July 2019, the applicant objected to the decision of the Agency.

7. On 12 September, the applicant’s objection was disallowed.

8. On 2 October 2019, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the decision to disallow her objection.

9. On 9 January 2020, following a hearing that same day, the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) affirmed the decision under review, hence the care percentage of the child remained at 56% to the applicant and 44% to the other party.

10. On 5 February 2020, the applicant submitted an application to review the decision of the AAT1 which application is now before the Tribunal (AAT2).  

11. The applicant and other party appeared in person. The Respondent was represented by Mr Bishop of Mills Oakley Lawyers who appeared by video link.

    Issues

12. The issues to be determined by the Tribunal were correctly summarised by the respondent in the Statement of Facts, Issues and Contentions (SOFICs) namely:

    (a)whether the existing determination of percentage of care ought to be revoked, and if so from what date; and

    (b)whether a new determination of percentage of care ought to be made and, if so, what the new percentage of care ought to be, and from what date ought it apply.

    Legislation and Policy

13. The relevant legislation with regard to this application is:

    (i)The Child Support (Assessment) Act 1989 (Cth) (the Assessment Act); and

    (ii)The Child Support (Registration and Collection) Act 1988 (Cth) (the Collection Act).

14. The relevant policy is contained in the Child Support Guide (the Guide) and is also relevant to this application.

15. The provisions of the Assessment Act are to be applied, with the assistance of, and in accordance with, the policy contained within the Guide. Albeit the Tribunal is not bound by policy, it must take it into account and will usually do so unless there is cogent reason not to[1]. There is no reason for the Tribunal not to take into account the policy in this matter.

    [1] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 639-645).

16. The respondent in the SOFICs correctly summarised the legal principles to be applied when considering a care determination, pattern of care, and care period. Those legal principles were not in dispute.

17. The respondent submits that an assessment of care with reference to nights spent by the child with each of his parents was the appropriate basis for assessment in this matter. The Tribunal’s decision about pattern of care and number of nights was then to be converted to a percentage of care[2]. Those findings will inform the issues to be determined as referred to in paragraph 12 above. The Tribunal agrees with that submission and the applicant and other party do not oppose the submission. The hearing proceeded on the basis of determining, as a matter of fact, the care pattern of the child, having regard to the number of nights the child spent with each parent.

    [2] Topic 2. 1.1 of the Guide.

18. The applicant and the other party both dispute the pattern of care for the relevant care period which was 1 December 2018 to 30 November 2019. The applicant contends that the change in care commenced on 1 December 2018 and thereafter her percentage of care of the child was 83% with the applicant and 16% with the other party. The other party argues that there was no change to the care pattern of the child and that he continued to have 44% of the child’s care.     

19. Hence, in this matter it is for the Tribunal to determine as a matter of fact, having regard to the evidence:

    (i)whether there was a change in the pattern of care arrangement for the child;

    (ii)if the answer is yes, the nature of that change in the pattern of care arrangement; and

    (iii)the date from which that pattern of care arrangement changed and for what period of time during the relevant care period.

20. The respondent correctly submitted that should the Tribunal find a change in care arrangement of the child, pursuant to s 54F (3) of the Assessment Act that change for the purpose of the child support assessment would only take place from the date of notification being 3 May 2019, because the notification was made more than 28 days from the date of change occurring on 1 December 2018 and will apply until such time as the care percentage is revoked and replaced by another care percentage decision.

    The Evidence

    The Applicant

21. The applicant said the child’s principle place of residence was with her save for those periods when he spent time with his father or was elsewhere.

22. Prior to 1 December 2018, for the purpose of the Agency, the care arrangement was 56% with the applicant and 44% with the other party. The applicant said that the arrangement was never consistent and when the issue of the care arrangement was before the Tribunal the other party would maintain that 44% care arrangement, but otherwise it would not be consistent. The inconsistency had been ongoing since 2012.

23. From 1 December 2018, that changed. He would send a text message saying he could not have the children, or he was sick. There were numerous excuses given which was consistent with the inconsistencies that occurred over the preceding years.

24. When asked by the Tribunal, the applicant  said she had previously provided diary evidence in an unrelated hearing before the Tribunal, which was demonstrative of the change in care arrangement. For the purpose of the current application, she only had photographs including of her relevant calendar entries and text messages upon which she relied.

25. I note the earlier matter before the Tribunal related to the question of the amount of care each parent had of both children in the period February 2013 and August 2016 and the decision was dated 24 January 2019. That matter bore no relevance to the percentage of care in the period before me.

26. The applicant said in 2018 and 2019 she had very little communication with the other party, and from 21 January 2019, being the date of the decision of the Tribunal, she had no more communication with the other party. The applicant would communicate with him through her children.

27. The Tribunal took the applicant to the Tribunal Documents, particularly T39 at pages 133 – 251 which appeared to include SMS messaging from 12 March 2019 and photographs with captions.

28. Hence, at T39 pages 133 – 136 the applicant said these were text messages between the child and herself between Tuesday, 12 March 2019 and Sunday 7 April 2019 when the child may or may not have been in her care at her home. She explained that, for example, at page 133 those entries related to (i) on Thursday 14 March 2019, the child had a driving lesson after school and that the applicant transferred cash to the child to meet the cost of that lesson; and (ii) on Friday 15 March 2019, her partner’s two children were coming to her home which occurred from time to time. Those children were the same or similar age as her children. Her and her partner’s children would all be together in her home.

29. The applicant said that the SMS messages established that the children were still with her at a time when the other party was meant to have been responsible for their care. The applicant said that the material produced, evidenced the continuing expenditure and ongoing care she had of the child.

30. I invited the applicant to identify any document which she said I should have regard. She said there was a lot of them. I directed the applicant to page 166 of the Tribunal Documents, as an example, being a tax invoice for Officeworks in the sum of $1,399.00. The applicant said she had to buy the child a new laptop. She said the following pages also detailed other expenses incurred by her which included, for example, driving lessons.

31. A further example was page 218 dated 10 August 2019, being the payment of school fees which the applicant said were then overdue.

32. From 1 December 2018, the applicant said that the other party would message her saying he was “too broke” and made other excuses and thereafter the care arrangement did not revert back to the original percentage. The applicant was asked if by reference to the material before the Tribunal, there was something that evidenced the change in care. She repeated that the other party kept making excuses not to have the care of the child or children. However, the applicant produced no evidence of any such message from the other party.

33. The applicant said that after the last Tribunal hearing when her diary entries were not accepted, she thought she better lift her game and record everything. I again asked the applicant if she could identify within the documents such record that evidenced the change in arrangement from 1 December 2018, throughout 2019 and 2020. She responded that pages 131 and 239 of the Tribunal Documents evidenced such change.

34. Page 131 was a photograph of a diary for 2018 with circled dates when she said the other party had the care of the child. For December 2018, the days circled were 1 December and 24 – 29 December inclusive. Page 239 and page 240 appear to be a record of monies reimbursed by the applicant to the child for his out of pocket expenditure such as haircut and fuel expenses.

35. The Tribunal referred the applicant to the 2019 diary entries contained in Exhibit F. Hence, for example, 6 days were circled in January, 2 days in February, 4 days in March, 8 days in April, zero days in May and 7 days in June; but with an increase in circled dates in some of the remaining months of 2019.

36. The applicant said that when she put in her complaint on 3 May 2019, the other party then tried to see the child again, but he could not maintain that arrangement. He never had the child to the extent he should have. The applicant was asked if she had any evidence that corroborated the contents of the diary. She said she had plenty of evidence including her partner, her mother and sister. When asked if she had provided a statement for either person, she said she had not. She did so in previous proceedings, but she said that was not used in evidence.

37. The applicant installed a security camera at her home in 2018. The reason was “so people wouldn’t enter the property and also to keep track”. The applicant said that she did not have the video footage from the surveillance camera because of the size of the record but she could look at it at any time. She said she was not going to present it as evidence. She did not know how to upload the “big file”. The applicant said that one can take photo shots of specific days but there were no photo shots produced because it was time-consuming to go back through the material. She said she only wanted to use it as a “last last last resort” because she found going through the process difficult.

38. The access dates for 2020 were contained in a diary record contained in Exhibit B with 13 days circled in January, and February and 3 days in March. It was an incomplete record. The applicant produced the 2020 diary which was copied and received and marked Exhibit U. The applicant confirmed that from March 2020 until October 2020 the other party maintained the care percentage arrangement. She said he did so because he knew proceedings were before the Tribunal.

39. The applicant accepted that by reference to the 2018 calendar[3],the pattern of care was generally the same up until 1 December 2018. In 2019, the applicant initially agreed the other party maintained something close to the percentage of care arrangement in the months of July, August, October and December but then changed her evidence and said he did not do so. She said it fluctuated.

    [3] T39, page 131.

40. The applicant accepted that there was a period in 2019 when the other party was hospitalised. She then said that was in January 2020 when he was stabbed.

41. When asked if she knew of a reason why the other party did not have the child in 2019, she said there was a period when he was unwell, when he was broke, or when he was helping out a person in a custody dispute. When asked if there was material before the Tribunal that could support that assertion, she said it was contained in the filed material but could not identify it. She then said it was contained in material sent to the Agency and referred to T34, page 124. That appeared to be a copy of a redacted communication relating to a subsequent application by the applicant dated 2 October 2019 which contained the reasons for the application.

42. The Tribunal referred the applicant to the other party’s diary record starting at T14, page 69 (page 101 of the diary). The applicant said that she had compared the entries with her diary records. She did not agree with the other party’s diary record. She said he completed that record only after the earlier decision of the Tribunal was delivered in January 2019. The applicant said she maintained her diary records since 2013. The applicant’s position was that the other party’s diary records were not cotemporaneous and, insofar as it differs from the applicant’s diary records, she asks the Tribunal to accept her records.

43. The applicant said that she had evidence that could prove this. The Tribunal asked again what that evidence was. She referred to the diary record. The applicant then referred to the evidence placed before the Tribunal with respect to the decision of 24 January 2019, including evidence from her partner, mother and sister. I note the Tribunal in that matter said at paragraph 18 under heading ‘Conclusion’ that “I have not found the evidence of the circled dates satisfactory. I am not satisfied that [the applicant] was maintaining an accurate contemporaneous record.”

44. The Tribunal again asked the applicant if she had evidence other than the diary record which related to the period from 1 December 2018 and that supported her evidence that the child was in her care. She was critical of the Tribunal and referred to the evidence she gave in unrelated proceedings which was not accepted.

45. The hearing was briefly adjourned to give the applicant the opportunity to consider the tendered evidence and to identify such evidence that may support the allegation that the handwritten material provided by the other party was false. After resuming, the applicant referred to T14, page 70 and following (page 102 of the diary) which was for the period January to March 2019. She maintained that SMS communications to which I have previously referred indicated that she had the child in her care which was inconsistent with the other party’s diary records. For example, the SMS communication between the applicant and the child at 7.34am on Thursday 14 March 2019[4] said that the child had a driving lesson at 3:30pm that afternoon which the applicant said supported her assertion that the child was at home with her that evening. The other party’s record for that day records “boys got here at 6.20pm.”

    [4] T39, page 133.

46. At T39, page 149 is a SMS record, being a message, the applicant sent to herself at 9.52pm on Friday 31 May 2019 which referred to the children not going to the other party that weekend. It was suggested he was in hospital.

47. At T39, page 157 was a picture of the 2019 diary taken part way through the year. The applicant said that the various photographs of her diary in 2019 were provided to the Tribunal to show the progression of diary entries which established the diary record was a contemporaneous record and not an entry made on the one occasion.

48. The applicant said that she also took photographs of her sons on occasions when they remained at home and did not go to their father. Hence, the applicant said that the photograph of the child at T3, page 158 on Thursday 7 November 2019 with the caption “Not at dads again” and “Neither for the weekend…” A further copy of that photograph with time and date records indicates that it was taken at 4.39pm that afternoon[5].

    [5] Exhibit B.

49. At T39, page 159 is a photograph of the child taken on Thursday 11 July 2019 which she said was taken at 6.17pm. At page 161, on Thursday 8 August 2019 at 5:40pm is a photo captioned “Not going to Dads” and on Friday 20 September at 5:16pm captioned “Not at Dad’s”. Insofar as there were time stamps on the photo and written entries, they were entered by the applicant but the information contained with the telephone record of the photograph was reproduced as part of Exhibit B, which confirmed the date inserted in the photograph was correct. The applicant said the dates on the photographs were consistent with the diary entries in which she said she had the care of the child.

50. The Tribunal referred the applicant to two letters dated 1 August 2020 each signed by the child and his older brother which confirmed the applicant and the other party continued during the relevant period to have the care of each child consistent with the care percentage of 56% and 44% respectively. She was invited to comment on the letters. Her response was lengthy but in short, she said the children love their father and they would not want to hurt him. She said she knows why they signed the letters. They would not like it. I infer she was saying that they felt obligated to sign each letter at the other party’s request. She did not agree with the contents of the letters.

51. In cross examination, counsel for the respondent took the applicant to T5, page 42. This is the online care advice she provided to the Agency dated 3 May 2019 and referred to a change in care arrangement since 1 December 2018. When asked why she took so long to advise of the change, she said the other party changed everything into an issue, and child support did not believe her. When asked again to explain what changed such that she advised the Agency of that change in circumstance, she said it was because she paid for everything twice. She said that she was being asked to pay child support twice.

1. It was put to the applicant that in or around May 2019 there was a change in the assessment resulting in her having to pay child support and, as a consequence, the applicant incurred a debt. She said was required to pay child support to the other party, but he did not have the children in his care. The applicant did not answer the respondent’s question.

2. The Tribunal then questioned the applicant. She said the delay was because she was preparing her evidence, she had dealt with the Tribunal on numerous occasions and had been called a liar on numerous occasions by many Tribunal people, and by the Agency. She was critical of the Agency and their response whenever she made a complaint. Therefore, she avoided contact with the Agency until she got her evidence together.

3. The respondent asked the applicant why, in her online advice of change in care percentage dated 3 May 2019, she wrote that the applicant had the children 4 – 6 nights each month which did not accord with her calendar record; and, why she did not stipulate the number of circled days that she recorded each month. She explained that child support like to work on an average, so 4 – 6 nights each month was the average. When asked why, if she had an accurate record of the days the children were with the other party, she did not give those details. The applicant did not provide a satisfactory answer and was argumentative.

4. As to the photograph at T39, paged 158-159 it was put that a particular photograph or a particular receipt was not proof of where the child spent the night. Again, the applicant became argumentative and did not answer the question.

5. In response to questions from the Tribunal her evidence was that when the child was in the other party’s care, an expense incurred should be paid by the other party. The fact that on occasions when she paid the account, for example on a Saturday for driving lessons, it supported her position that the child was in her care and not the other party.

   The Other Party

6. Prior to 1 December 2018, the care arrangement had earlier been 50% to each parent but that subsequently changed to 56% and 44% which was the care percentage in December 2018.

7. After 1 December 2018, there was one period where a change occurred because the other party was in hospital for an asthma related illness in January 2019. He was hospitalised for 5 days. There was an occasion in January 2020 when he was assaulted, stabbed and robbed at a Hungry Jacks premises close to his house. The latter incident did not impact upon the care arrangement.

8. As to the diary record produced by the other party, he said that he decided after the last Tribunal hearing and noting the diary record produced by the applicant, that he should keep a record, which he did until they were next before the Tribunal. After that he did not continue to keep a diary record. He did not think at that time that there was a need to do so.

9. The other party said that the care arrangement was an oral agreement between he and the applicant and when the applicant dropped the boys off at his home, he and the applicant would communicate with each other. He subsequently purchased cars for each of the boys. From the time the eldest son got his driver’s licence about 2 years ago aged 17 – 18 years, and received his car, the boys were no longer dropped off at his residence. They both came together in the one car. The other party said he then received a large volume of messages from the applicant which he said were abusive. He replied and thereafter they ceased communicating. The other party then communicated with the boys about them coming to his home and not with the applicant.

10. The other party said that the care percentage arrangement continued unchanged. He referred to the applicant’s 2020 calendar[6] entries which demonstrated the 56% - 44% care arrangement which he said was the percentage care arrangement he had always maintained. He said on Sunday evenings the boys left his home to return to the applicant at about 5.00pm. The calendar also showed the school holiday arrangement; for example, Thursday 9 April to Wednesday 15 April dates are all circled. That was the half of the school holiday period the boys were in his care.

    [6] Exhibit U.

11. The Tribunal took the other party to Exhibit F being the applicant’s calendar record for 2019. As to the January record, which indicated the applicant had the boys for seven days that month, the other party explained that this was the period that he spent five days in hospital which only impacted upon one week when he did not have care of the boys. He was referred to May 2019 where no day is marked. The other party said that this was at the time that the applicant was making the claim and that at or about that time the applicant had been caught lying. The other party said that the applicant had declared she was unemployed and was receiving benefits, but that the Agency found out she had been in full-time employment, which resulted in the applicant incurring a debt and, as a consequence, she made the application for change of care percentage in May 2019.

12. The applicant said that apart from one week in January 2019 he consistently had the care of both boys on Thursday, Friday and Saturday nights and they returned to the applicant on Sunday. He said that the applicant’s records from February 2019 and thereafter which depicted limited or no access to the boys were lies. He maintained that he had the care of both boys consistently throughout that year in accordance with the care percentage, which continued in 2020 as indicated in the applicant’s calendar record for that year.

13. The other party said that he lost his license for six months which resulted in a change in the care arrangement, but he could not recall if that was from August 2017 or 2018. But in any event, by 2019 the eldest son had a car and he was driving the child to the other party’s home for regular access care. Insofar as the applicant notified the Agency of the change in care arrangement in May 2019, the other party’s explanation for the absence of recorded care was because that is when the applicant was discovered to have received government benefits to which she was not entitled.

14. The other party said that he has never not seen the children for more than a week save for that period he was in hospital in January 2019.

15. The Tribunal referred the other party to Exhibit S, being two typed letters signed by the child and his older brother and dated 1 August 2020 together with two photographs of a ford sedan motor vehicle. The two letters were prepared by the other party in front of both boys and he asked them to sign. The handwritten additions were made by each child. In respect of the eldest son’s letter, he blacked out part of the last sentence and the addition is in his handwriting.

16. The two photographs of a Ford sedan were the child’s car which the other party purchased for him in or about August 2019 just before the child obtained his driver’s licence in early 2020.

17. The other party said that insofar as the applicant said in evidence that when the child was in the applicant’s care he should pay the expenses, he was never advised by the applicant of the account payable. He buys their telephones and the other party pays for their telephone credits. He bought the laptop that the applicant said blew up. He referred to other items he purchased in pairs so that they each child received the same item, such as a playstation. He said that whenever the applicant spent money on the boys she would try and claim it back from him even though she was working full-time, and he was on the disability support pension.

18. The respondent in cross-examination referred the other party to his diary records which were dated between 31 December 2018 and 18 May 2019.  He said he stopped keeping the diary record when he was asked to hand them in to the Agency. He had never kept diary records before. He started doing it following the previous hearing and having seen the diary records the applicant produced. But he said he knew when he had his sons and he did not see the need for keeping the record. He thought that by also obtaining a signed letter from both sons, that was sufficient. He repeated that the applicant pursued the application after she had been found out for lying and incurred a debt. He did not believe he needed to keep ongoing records.

19. In respect of the other party’s diary records for the period 1 March 2019 to 24 March 2019[7] which are endorsed “in hospital no kids”, the other party said that that was another time when he was in hospital that he forgot about. Hence, there were two occasions in 2019 when he was in hospital. He otherwise had care of the child in 2019 from Thursday to Sunday and one week within the school holidays. He disagreed with the applicant’s entries for 2019.

    [7] T14, page 60.

20. The other party was taken to an undated handwritten letter of Ms TP which appears to be received by the Agency along with the applicant’s diary entries, on 19 June 2019 and which confirmed that other party had the care of the boys consistent with his evidence. The other party said she is a friend who came to his house a lot. She never resided with the other party. She was at his house a lot of the time and her children and the other party’s children were friends. He described her at that time as his best friend. The other party conceded that she could not speak to each weekend but generally confirmed they were at his house on a regular basis. They are no longer friends.

21. The other party then raised with the Tribunal the opportunity to respond to the evidence of the applicant in relation to certain photographs of the child at the applicant’s home on access days and of the car parked on the street outside the applicant’s house. The Tribunal agreed to hear the other party.

22. He said that both boys had their own car and could come and go from his home as they pleased. They would return to the applicant’s home to use the computer because the other party did not have a computer or internet, to get a change of clothes or do whatever they needed to do and then they returned to the other party’s house, including for evening meals and to sleep. The drive between the applicant’s and the other party’s house was 10 to 15 minutes. The other party said that the boys would often go to their cousin’s house on a Thursday but would always return to the other party’s house to eat and or sleep. The cousins were a 10-minute drive from the other party’s house.

23. As for the photograph referred to by the applicant depicting the child’s car parked in the applicant’s street and dated Friday 20 September 2019[8], he said the car had, at or about that time, broken down and it was parked in that position for about a month. There was no change in the care arrangement.

    Closing submissions

    [8] Exhibit B.

24. The applicant said that she only circled those dates in the calendar record, representing those nights the child stayed with the other party. She was critical of the child support system. She maintained that she has kept diary record for many years. She referred to the historical record keeping which has not previously been accepted. The applicant said that she received a debt consequent upon the previous Tribunal decision and was critical of the system and that she has been disbelieved.

25. The other party referred to the applicant having incurred a debt which influenced her decision to engage in the current application.

26. The respondent provided an overview of the law as it related to this matter consistent with the Registrar’s SOFICs which I will not repeat. The respondent did not invite the Tribunal to find a particular position with respect to this matter. This was a factual dispute between the parties as to the nights when each had the care of the child during the relevant care period. The care period is usually a 12-month period and in this case from 1 December 2018 through to 30 November 2019. The Registrar’s submission was that there was no reason to deviate from that general position in this case. The Tribunal agrees with that submission.

27. Isolated incidents or one-off events that change the pattern of care will not generally be seen as a change to the existing care determination. Again, the Tribunal agrees with that submission.

28. In respect of whether or not there has been a change in pattern of care, the respondent referred to item 2.2.2 of the Child Support Policy Guide which states that where there is insufficient evidence to establish a pattern of care different to that which is in existence and recorded on the register, the care will not be changed and there will be no amendment to the assessment.

29. If the Tribunal is satisfied that there has been a change to the care percentage of the child and determines a new care percentage has occurred, given the fact that the notification of the change in care was notified in excess of 28 days when that change occurred it would take effect from 3 May 2019 being the date of notification by the applicant of that change.

    Consideration

30. The applicant’s evidence about the change in care percentage relied particularly on her diary entries, various SMS telephone entries including notes to herself or references to paying accounts such as driving lessons on access dates, and a number of photographs including the child at her home on the other party’s care days.The other party has said that the children had their own transport, would return to their mother’s home on occasions, including to use the computer or collect a change of clothes but always returned to his home for meals and to sleep.

31. I have considered the various photographs produced by the applicant. I will not detail each photograph, but there are some that I will mention contained in Exhibit B.

    Friday 10 May 2019 taken at 4:20pm at the applicant’s home;

    Saturday 11 July 2019 taken at 6:17pm shows the child at his computer which the Tribunal assumes is at the applicant’s house;

    Thursday 8 August 2019 at 5.36pm endorsed by the applicant “Not going to dads”;

    Friday 6 September 2019 at 3.20pm endorsed by the applicant “not at dads”;

    Sunday 29 September 2019 taken at 10:26 pm; 

    Thursday 24 October 2019 taken at 7:40 pm with the applicant’s endorsement that the boys are not at the other party’s house who has said he was too broke that weekend;

    Sunday 3 November 2019 taken at 2:50 pm with the applicant’s endorsement that the children did not go to the applicant’s that weekend; and

    Thursday 7 November 2019 taken at 4:39pm. However, those photographs along with the diary entries could be explained, for example, as being taken on Thursday evening prior to the child going to the other party’s home, or late on a Sunday evening after returning from the other party’s care. They may also be consistent with the child returning to the applicant’s home to use the computer as asserted by the other party or for some other purpose.

32. The other party’s diary entries are for the period in January 2019 to May 2019. Those records are consistent with the existing care arrangement, albeit I note that there is no diary record for 10 May 2019 which was the date of one of the photographs produced by the applicant taken at 4:20 pm being a Friday afternoon.

33. The other party said he stopped keeping diary records after he produced the record to the Agency. The material before the Tribunal indicates that he provided the diary entries to the Agency as requested in June 2019.

34. When the applicant’s various diary records are considered together along with the various photographs provided by the applicant, that evidence was not capable of satisfying me that there was an ongoing change in pattern of percentage care as alleged by the applicant.

35. The Tribunal received letters signed by the child and his brother which confirmed the percentage care arrangement did not change. These letters were prepared by the other party in each child’s presence and they signed them. As the applicant observed, the child and his brother love their father and would not want to hurt him or cause him distress. In circumstances where the child and his brother were in a care arrangement in relation to both parents, the Tribunal received such evidence with a degree of concern as to its reliability and as such has not relied on those letters in coming to the decision.

36. When the Tribunal asked the applicant if she could identify within the tendered documents such further or other evidence that supports her contention that the other party did not have the care of the child in accordance with the percentage of care, that evidence to which she referred was limited to diary entries and photographs. There was no evidence of SMS or other communications from the other party cancelling access including because he was broke.

37. The applicant took photographs of her diary records at various stages throughout the relevant year to rebut a proposition that the records were not contemporaneous and to avoid the criticism made of her record keeping in an earlier Tribunal hearing. However, the mere circling of calendar dates with occasional photographs was not sufficient to persuade the Tribunal of a change in care arrangement.

38. Further, when the Tribunal asked the applicant if she had further evidence in support of her position, she said she had lots of evidence, including her partner, mother and sister and also said to the Tribunal “tell me what you want”.

39. It is not for the Tribunal to present the applicant’s evidence. The applicant has previous experience before the Tribunal. If she had further evidence, it was up to her to produce it. If her partner, mother or sister had evidence that supported the asserted change in care arrangement the Tribunal would expect that applicant to produce that evidence. She did not.

40. Also, of note, was the delay in the applicant informing the Agency about the change in care arrangement until 3 May 2019 with the purported change in care taking affect from 1 December 2018. When asked by the respondent to explain the delay her answer was unsatisfactory. Her response was that she paid child support twice. She then said that she was required to pay child support to the other party when he did not have the care of the child.

41. In response to the same question by the Tribunal, the applicant said that the delay was because she was preparing her evidence and she avoided contact with the Agency until she obtained her evidence. Given her evidence was principally diary entries and photographs which were already in her possession, the Tribunal does not accept that evidence as a satisfactory explanation for a delay of five months.

42. The Tribunal is satisfied that on isolated occasions there was a change in the care arrangement of the child such as those occasions when the other party was in hospital, but that does not satisfy the Tribunal that there was a change in the pattern of care. Hence, the applicant’s diary entries and photographic evidence together with her oral evidence, did not satisfy the Tribunal that there was a change in the percentage care of the child during the care period commencing 1 December 2018.

    Decision

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth.

…………………[SGND]……………………..

Associate

Date: 14 July 2021

Date of hearing

29 January 2021 

Applicant:           

Self-represented

Representative for the Respondent:

Christopher Bishop, Mills Oakley

Other party:

Self-represented

1. The decision under review is affirmed.