Rodgers and Child Support Registrar (Child support second review)
[2016] AATA 1064
•21 December 2016
Rodgers and Child Support Registrar (Child support second review) [2016] AATA 1064 (21 December 2016)
Division
GENERAL DIVISION
File Number(s)
2016/0717
Re
Ms Rodgers
APPLICANT
And
Child Support Registrar
RESPONDENT
And
Mr Rodgers
OTHER PARTY
DECISION
Tribunal Deputy President Dr P McDermott RFD
Date 21 December 2016 Place Brisbane I set aside the decision under review and substitute it with a decision that between
24 April 2015 and 25 November 2015, the applicant and the other party had 90 per cent and 10 per cent care of the child respectively.................................[sgd]........................................
Deputy President Dr P McDermott RFD
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 – other party had less than regular pattern of care – decision under review set aside and substituted
LEGISLATION
Child Support (Assessment) Act 1989 (Cth) ss 4, 49, 50, 54A, 54F, 54G
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
21 December 2016
INTRODUCTION
Ms [Rodgers] (“the applicant”) seeks a review of the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (“the SSCSD”) dated 18 January 2016 to affirm the decision that there was no change in the pattern of care of the child on 24 April 2015.
BACKGROUND
The applicant and Mr Rodgers (“the other party”) are the separated parents of a 16 year old child (“the child”).
On 5 March 2008, the applicant and the other party entered into court orders concerning the care arrangements of the child.[1]
[1] Exhibit A, T-Documents, T5.
From 22 August 2014, the child has been recorded by the Child Support Registrar (“the respondent”) as being in the applicant and the other party’s care 84 per cent and 16 per cent respectively.[2]
[2] Exhibit A, T-Documents, T7.
On 20 May 2015, the applicant informed the Department of Human Services (“the Department”) that from 24 April 2015 she and the other party had 87 per cent and 13 per cent care of the child respectively.[3]
[3] Exhibit A, T-Documents, T11.
On 14 July 2015, the Department determined that there had been no change in the care of the child on 24 April 2015.[4] The applicant objected to the decision of the Department.
[4] Exhibit A, T-Documents, T12.
On 2 October 2015, an Objections Officer disallowed the applicant’s objection.[5]
[5] Exhibit A, T-Documents, T15.
On 25 November 2015, the applicant informed the Department that from that date she and the other party had 100 per cent and 0 per cent care of the child respectively.[6]
[6] Exhibit A, T-Documents, T24 at pp. 221-223.
On 18 January 2016, the SSCSD affirmed the decision under review.[7]
[7] Exhibit A, T-Documents, T2.
On 8 February 2016, the applicant sought a review of the decision of the SSCSD with this Tribunal.[8]
[8] Exhibit A, T-Documents, T1.
ISSUES
Section 54F(1)(e) specifies that this section does not apply if s 54G is applicable. Therefore, the first issue for consideration is whether the other party has had a pattern of care that is less than regular care of the child, despite the applicant making the child available to the other party.
If s 54G(1) is not satisfied, the second issue is whether the care of the child that is actually taking place corresponds with the parties’ existing respective percentages of care for the child.
If either ss 54F or 54G are satisfied, the final issue is what the applicant and the other party’s respective percentages of care for the child was during the care period.
CONTENTIONS
The applicant contends that in 2014 and 2015 the child was in the care of the other party for less than 48 nights per year. She contends that her percentage of care of the child over the two years is greater than 87 per cent.[9] The applicant contends that she makes significant financial contributions to the costs of the child’s education, medical treatment, sport, transportation and clothing.[10]
[9] Applicant’s post-hearing submissions at [5].
[10] Applicant’s post-hearing submissions at [11].
The applicant contends that the other party had care of the child for 22 nights in the period between 24 April 2015 and 22 November 2015.[11]
[11] Applicant’s post-hearing submissions at [9].
The other party contends that he had care of the child for 56 nights in 2014 and for 52 nights in 2015.[12] He disputes that there was a change in the pattern of care on 24 April 2015.
[12] Other party’s post-hearing submissions.
The applicant, and the other party and his wife lodged calendars which are inconsistent with one another in respect of the following dates:
·23 and 24 January 2014;
·23 March 2014;
·4 to 6 April 2014;
·22 to 24 August 2014;
·14 to 16 November 2014;
·13 to 15 December 2014;
·24 to 26 April 2015;
·8 to 9 May 2015;
·27 June 2015;
·4 July 2015;
·17 to 19 July 2015; and
·23 to 25 October 2015.
The respondent contends that the relevant care period is between 24 April 2015 and 25 November 2015. They contend that it is common ground that the court orders made on 5 March 2008 were not being following during the relevant care period or for some time before then. They contend that in order for the Tribunal to make a determination that the other party had less than regular care it must also be found that the other party provided less than 103 nights care for the child between 2014 and 2015.
LEGISLATIVE FRAMEWORK
Section 4(1) of the Child Support (Assessment) Act 1989 (Cth) (“the Act”) states that the principal object of the Act is to ensure that children receive a proper level of financial support from their parents.
Section 49 of the Act states that the respondent must make a determination of a percentage of care if the respondent is satisfied that a responsible person for the child has had, or is likely to have, no pattern of care for the child during a care period. Section 50 of the Act states that the respondent must make a determination of a percentage of care if the respondent is satisfied that a responsible person for the child has had, or is likely to have, a pattern of care for the child during a care period.
Section 54F(1) of the Act states:
(1) If:
(a) a determination of a responsible person's percentage of care (the
existing percentage of care) for a child has been made under
section 49 or 50; and
(b) if section 51 or 52 applied in relation to the responsible person--
the interim period for the determination has ended; and
(c) the Registrar or the Secretary is notified, or otherwise becomes
aware, that the care of the child that is actually taking place does
not correspond with the responsible person's existing
percentage care for the child; and
(d) the Registrar is satisfied that the responsible person's cost
percentage for the child would change if the Registrar were to
determine, under section 49 or 50, another percentage to be the
person's percentage of care for the child; and
(e) section 54G does not apply;
the Registrar must revoke the determination.
Section 54G(1) of the Act states:
(1) If:
(a) a responsible person (the first responsible person) for a child
was to have at least regular care of the child during a care
period under a determination (the first care determination) made
under section 50; and
(b) the first responsible person has had no care of the child, or has
had a pattern of care that is less than regular care of the child,
despite another responsible person for the child making the child
available to the first responsible person; and
(c) a determination of the other responsible person's percentage of
care for the child has been made under section 50; and
(d) the other responsible person notifies the Registrar or the
Secretary of the matter referred to in paragraph (b) of this
subsection within a period that the Registrar considers is
reasonable in the circumstances;
the Registrar must revoke both determinations.
Sections 49(2) and 50(2) of the Act state that the respondent must determine the responsible person's percentage of care for the child during the care period where the existing determination has been revoked.
Section 50(3) of the Act states that percentage determined under subsection 50(2) must be a percentage that corresponds with the actual care of the child that the responsible person has had, or is likely to have, during the care period.
Section 54A(1) of the Act states that the actual care of a child that a person has had during a care period may be worked out based on the number of nights that the child was in the care of the person during the care period.
CONSIDERATION
The care period in dispute is from 24 April 2015 to 25 November 2015. The care period commenced on 24 April 2015 when the applicant reported a change in care of the child to the Department. The care period concluded on 25 November 2015 when the applicant again reported a change in the care of the child to the Department which initiated proceedings separate to those currently before the Tribunal.
Did the other party have less than regular care of the child?
I accept the contention of the respondent that in order for the Tribunal to make a determination that the other party had less than regular care it must be found that the other party provided less than 103 nights care for the child between 2014 and 2015.
The applicant contends that the other party had care of the child for 80 nights between 2014 and 2015. The other party contends that he had care of the child for 108 nights between 2014 and 2015.
I have considered the supporting evidence lodged by both parties in support of their contentions concerning when they claim to have had care of the child. Neither party has provided any credible supporting evidence that the child was in their care on 23 and 24 January 2014, 4 to 6 April 2014 or 13 to 15 December 2014. I consider that the child was in the care of the other party during these periods as per the pattern of care that had previously existed.
The other party contends that he had care of the child on 27 June 2015 and 4 July 2015. However, he has not provided any cogent evidence to support that he had care of the child on these nights. I consider that the child was in the care of the applicant on these nights as per the pattern of care that had previously existed.
The applicant has lodged what she claims to be text message extracts sent from her mobile phone in support of her contention that she had care of the child on 23 March 2014. On 22 March 2014 at 9:33PM, the applicant sent a text message to the other party stating:[13]
What time are you bringing [the child] home tomorrow(?)
[13] Exhibit A, T-Documents , T22 at p. 175.
On 23 March 2014 at 8:55AM, the applicant sent a text message to the other party stating:[14]
You dropped [the child] and didn’t give him any camp gear or money
[14] Ibid.
These messages are not probative in terms of determining who had care of the child on 23 March 2014. It is possible that the child may have been in the care of the applicant, the other party, or neither parent on 23 March 2014. Having regard to the oral evidence of the parties, I consider that the child was in the care of the other party on this night.
The applicant has lodged a letter from a parent of other children at the child’s school in support of her contention that she had care of the child on 22 August 2014 to 24 August 2014. The author of the letter states that the applicant and the child shared a holiday house with them between 22 and 24 August 2014.[15]
[15] Ibid at p. 172.
The applicant also lodged a letter from the director of a sporting tournament. The director states that the applicant and the child attended the tournament on 23 and 24 August 2014.[16] In view of this supporting material, I am satisfied that the child was in the care of the applicant in the period between 22 and 24 August 2014.
[16] Ibid at p. 176.
The applicant has lodged a letter from another sporting event director in support of her contention that the child was in her care on 14 November 2014 and 16 November 2014. The director states that the applicant and the child attended the tournament on 14 and 15 November 2014.[17] In view of this supporting material, I am satisfied that the child was in the care of the applicant in the period between 14 and 16 November 2014.
[17] Ibid at p. 173.
The applicant has lodged an undated statement from her brother in support of her contention that she had care of the child between 24 and 26 April 2015. The applicant’s brother states that he was staying with the applicant at the time and observed the child preparing school material.[18] It is unclear what is meant by “school material”. Certainly, the child could not have been preparing to attend school on 25 and 26 April 2015 as these dates are both weekend days although the child may have been doing homework.
[18] Exhibit A, T-Documents, T19 at p. 150.
The applicant also lodged a statement prepared by a neighbour dated 20 September 2015. The neighbour lists several dates when she visited the applicant and observed the child at the applicant’s residence.[19] I do not attach any weight to this statement as that the neighbour told the SSCSD that her record of dates was prepared with the assistance of the applicant.[20] Moreover, the issue of partiality arises as the neighbour alleges that the other party has sent her “a menacing message” on social media.[21]
[19] Exhibit A, T-Documents, T22 at p. 166.
[20] Exhibit A, T-Documents, T2 at p. 7.
[21] Exhibit A, T-Documents, T22 at p. 166.
The applicant also lodged a receipt from ‘Specsavers’. The receipt refers to the child as the customer and has a date and time stamp of 26 April 2015 at 3:23PM.[22]
[22] Exhibit A, T-Documents, T19 at p. 151.
The other party contends that he had care of the child between 24 and 26 April 2015. However, he has not provided any evidence or material to support this contention other than a marked up calendar. In view of this supporting material, I am satisfied that the child was in the care of the applicant in the period between 24 and 26 April 2015.
The applicant also relies on the statement from her brother in support of her contention that the child was in her care on 8 to 9 May 2015. The applicant’s brother states that his son was staying with the applicant during this period and that they were celebrating Mothers’ Day.[23]
[23] Exhibit A, T-Documents, T19 at p. 150.
The statement of the applicant’s neighbour has also been relied on in support of her contention that the child was in her care on 8 to 9 May 2015. However, as stated above, I do not give this statement any weight.
The applicant also lodged an email sent on 15 November 2015 from a person who states that they saw the applicant and the child together attending a “QA exam” on 9 May 2015.[24] It is difficult to attach any weight to this email given that the circumstances surrounding the drafting of the email are unknown.
[24] Exhibit A, T-Documents, T23 at p. 180.
The applicant has lodged what she claims to be text message extracts sent from her mobile phone. A Justice of the Peace verified that they were shown the messages on the applicant’s mobile phone screen and that the dates and times are correctly recorded. At 6:15PM on 8 May 2015, a message is sent which states:[25]
Hey al (sic) this is [the child] I am just confirming that I am coming to Gladstone with you
In view of this supporting material, I am satisfied that the child was in the care of the applicant in the period between 8 and 9 May 2015.
[25] Exhibit A, T-Documents, T19 at p. 156.
The applicant has lodged a statement from her neighbour in support of her contention that the child was in her care between 17 and 19 July 2015.[26] For the reasons previously given, I do not give this statement any weight. I consider that the child was in the care of the other party during this period.
[26] Exhibit A, T-Documents, T22 at p. 166.
The applicant lodged a further statement from her neighbour dated 13 December 2015 in support of her contention that the child was in her care between 23 and 25 October 2015. In that statement the neighbour claims that she visit’s the applicant’s home on request of the applicant “for the specific purpose of observing that [the child] is not with his father and spends the whole day and night or weekend with his mother”. [27]
[27] Exhibit A, T-Documents, T23 at p. 179.
The applicant also lodged an email sent by a tennis manager on 25 October 2015 to which I give some weight. The manager states that the applicant accompanied the child to a tennis tournament on 24 and 25 October 2015. In view of this supporting material, I am satisfied that the child was in the care of the applicant in the period between 23 and 25 October 2015.
In summary, I consider that the other party had care of the child for 12 of the 28 nights that are in dispute. This means that the other party had care of the child for 92 nights between 2014 and 2015. Therefore, I am satisfied that the other party had less than regular care of the child despite the applicant making the child available to him.
What was the pattern of care in the care period?
I consider it appropriate to determine the percentage of care that the applicant and the other party had of the child with reference to the method of working out the extent of care set out in s 54A(1) of the Act.
Having regard to the calendars provided by the parties as well as my findings concerning the disputed dates, the child has been in the care of the applicant and the other party for 195 and 21 nights respectively out of the total 216 nights in the care period. Therefore, the applicant and the other party respectively had 90 per cent and 10 per cent care of the child in the care period.
CONCLUSION
After reviewing the considerable documentation before me, I am satisfied on the balance of probabilities that other party has had a pattern of care that is less than regular care of the child, despite the applicant making the child available to the other party. Accordingly, I revoke the previous determination pursuant to s 54G(1) of the Act.
I I have determined under s 50(2) of the Act the percentage of care that the applicant and the other party had of the child with reference to s 54A(1) of the Act. The applicant and the other party respectively had 90 per cent and 10 per cent care of the child in the care period.
DECISION
I set aside the decision under review and substitute it with a decision that between 24 April 2015 and 25 November 2015, the applicant and the other party had 90 per cent and 10 per cent care of the child respectively.
I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD ................................[sgd]........................................
Associate
Dated 21 December 2016
Date(s) of hearing 8 August 2016 Date final submissions received 23 September 2016 Applicant In person Solicitors for the Respondent Department of Human Services Other Party By telephone
Key Legal Topics
Areas of Law
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Family Law
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Administrative Law
Legal Concepts
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Appeal
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Statutory Construction
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Procedural Fairness
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