RSFS and Child Support Registrar (Child support second review)

[2022] AATA 1434

RSFS and Child Support Registrar (Child support second review) [2022] AATA 1434 (1 June 2022)

Division:GENERAL DIVISION

File Number(s):      2021/3675

Re:RSFS

APPLICANT

AndChild Support Registrar

RESPONDENT

AndXKXG

OTHER PARTY

DECISION

Tribunal:Member P Ranson

Date:1 June 2022

Place:Brisbane

The decision under review is affirmed. That means the care of the Daughter from 8 July 2020 is 0% to the Mother and 0% to the Father.

................[SGD]...............

Member P Ranson

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 – objection to care percentage change – care disputed – adult siblings – actual care of the children – domestic violence orders – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)

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

Cases

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
FCT v Cassaniti [2018] FCAFC 212

Imperial Bottleshops Pty Ltd v Commissioner of Taxation (1991) 22 ATR 148

Secondary Materials

Guides to Social Policy Law, Child Support Guide, Version 4.63, released 9 May 2022

REASONS FOR DECISION

Member P Ranson

1 June 2022

INTRODUCTION

1.    RSFS (the Mother) and XKXG (the Father) are the separated parents of a daughter. The Daughter was 15 when she left the care of her father in July 2020. This decision then is about where the Daughter went to live as and from 8 July 2020 and from that flows the percentage of care each of her parents provided from that date.

2.    A care determination for the Daughter commenced on 3 January 2020 as 0% to the Mother and 100% to the Father (the Existing Care Decision). The Daughter left the care of the Father on 8 July 2020, and the Mother notified the Registrar on 21 July 2020 she had returned to her care. The Father believes the Daughter went to live with her elder sister and not with the Mother. Due to the toxic relationship between the Mother and the Father, the Mother says the Father was told that to avoid conflict with the Daughter.

3.    On 31 August 2020, the Father confirmed to the Registrar he had ceased providing care to the Daughter on 8 July 2020 and advised she was living with her elder sister and not with the Mother. Nonetheless, the Registrar determined the care had changed to 100% to the Mother from 8 July 2020 (the Original Decision). The Father was dissatisfied with that decision and lodged an objection to it on 29 October 2020.

4.    The elder sister (as the Aggrieved) had previously taken out a DVO against the Father (as the Respondent) and on 3 February 2021 the Magistrates Court of Queensland varied that DVO to include the Daughter as a Relative of the Aggrieved based on an affidavit by the elder sister. The affidavit outlined the Daughter had come to live with her since 19 July 2020 (consistent with the assertion of the Father). Nonetheless, an authorised objections officer (ARO) disallowed the objection (the Objection Decision) and the Father applied to the Social Security and Child Support Division (SSCSD) of this Tribunal for a review of it. The hearing before the SSCSD was deferred once at the request of the Mother who failed to attend the subsequent hearing which proceeded in her absence.

5.    The decision under review was made by the SSCSD of this Tribunal on 11 May 2021 which set aside the decision of the ARO and in substitution decided to revoke the Objection Decision and found the care of the Daughter from 8 July 2020 was nil for both parents (AAT1).

6.    Dissatisfied with AAT1, on 3 June 2021 the Mother applied to the GD for a second review. The Hearing for this current application was held on 26 April 2022 (the Hearing). The Mother and the Father attended the Hearing, together with Mr Christopher Bishop (Mr Bishop) representing the Registrar. The video hearing was facilitated using Microsoft Teams and both parents gave affirmed evidence. No witnesses were called.

7.    The issues to be decided in this case are where did the Daughter live after she left the care of the Father on 8 July 2020 and what percentage of care applied to each parent from that date. The parties agree the actual care of the Daughter changed such that she left the care of the Father on 8 July 2020. The Father says the Daughter went to live with her elder sister. The Mother says she came to live with her, and the Father was told otherwise to avoid conflict.

BACKGROUND

8.    The parties in this case are:

Applicant	RSFS (the Mother)
Respondent	Child Support Registrar (the Registrar)
Other Party	XKXG (the Father)

9.    Prior to the Hearing, all parties were provided with an Exhibit List showing Exhibits 1 to 3. The following documents were admitted into evidence:

Number	Description
Exhibit 1	T Documents
Exhibit 2	Registrar’s Statement of Facts, Issues, and Contentions.
Exhibit 3	Care percentage table prepared by the Registrar at the request of the Tribunal.

10. The Tribunal has considered all the material supplied to it and the oral evidence of the Mother at the Hearing. Not all the evidence is referred to at length, or at all, in this decision record. That does not mean it has not been considered in determining the outcome. It is sometimes unnecessary to canvass all aspects, arguments, and history of a case in the decision record.

THE LAW

11. The Registrar’s Statement of Facts, Issues, and Contentions dated 18 February 2022 (SFIC) sets out in detail the law which is relevant to this case with which the Tribunal concurs. As a copy of the SFIC and its attachments were provided to both parents prior to the Hearing, that law will not be reproduced in this decision other than to confirm the relevant legislation is contained in:

(a)Child Support (Assessment) Act 1989 (Cth) (the Assessment Act).

(b)Child Support (Registration and Collection) Act 1988 (Cth) (the Registration Act)

(c)Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act)

12. The Registrar’s SFIC also refers to the Child Support Guide (the Guide) and especially Chapter 2.2.[1] The Tribunal notes where a general policy exists to guide the decision maker in exercising its powers, the Tribunal:

“will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision … cogent reasons will have to be shown against its application”.[2]

[1]  See Guides to Social Policy Law, Child Support Guide, Version 4.63, released 9 May 2021

[2]  Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645 (Brennan J).

13. The Tribunal considers there are no pressing reasons to depart from the policy outlined in the Guide. To the extent the Tribunal has considered policy in this case, it has not applied it inflexibly and has only considered it to the extent the Guide is consistent with the requirements as set out in the legislation as it would be an error of law for the Tribunal to state it must (emphasis added) follow what policy says concerning the scope or meaning of a provision in the Act or Regulations.

14. The AAT1 decision is a decision under s 43(1)(a) of the AAT Act and is reviewable by this Tribunal by operation of s 96A(b) of the Registration Act.

THE FACTS AND EVIDENCE

Oral evidence

15. The Tribunal approaches oral evidence understanding the following principles apply:

(a)Facts may be found based on oral evidence alone. There is no barrier to a fact being found on the uncorroborated evidence of a party to proceedings. There is no requirement that direct evidence by oral testimony or affidavit may only be accepted if corroborated. However, self-serving statements should be given close scrutiny.

(b)Evidence of a party is not to be regarded as prima facie unacceptable. While it will often be prudent to put forward corroborating evidence, parties are not obliged to call all material witnesses or produce all material documents.[3]

[3] For this and the preceding proposition, see, for example: Imperial Bottleshops Pty Ltd v Commissioner of Taxation (1991) 22 ATR 148, 155; and FCT v Cassaniti [2018] FCAFC 212.

16. The oral evidence of the Mother and the Father presented at the Hearing is highly conflicted. Corroborating that evidence is a difficulty for the Mother and the Father in this case.

What happened?

17. The parties agree care of the Daughter changed on 8 July 2020 when she left the care of her Father, the circumstances of which are not relevant to this decision. The Mother says the Daughter came to live with her and continued to do so until just after her 16^th birthday on 18 January 2021 after which she went to live with her elder sister. The Father says no, the Daughter went to live with her elder sister the day she left his care and that she was taken there by her elder brother who relayed that information to him. The issue to be decided is where did the Daughter live from 8 July 2020 to 18 January 2021.

18. To determine the percentage of care a responsible person has had where there is no pattern of care for a child, s 49 of the Assessment Act applies. If a parent makes an application for a costs assessment for a child, and the parent has had a relevant dependent child from a specified day, and the Registrar is satisfied a responsible person for the child has had, or is likely to have, no pattern of care for the child during such period (the Care Period) as the Registrar considers to be appropriate or the determination of a responsible person’s percentage of care for a child is revoked or suspended and the Registrar is satisfied the responsible person has had, or is likely to have, no pattern of care for the child during the Care Period, the Registrar must determine the responsible person’s percentage of care for the child during the care period and the percentage of care so determined must be 0%, unless s 51 applies to the responsible person.

19. Section 51 of the Assessment Act concerns agreed care being withheld and the person with reduced care taking reasonable action to enforce existing care orders. Section 51 does not apply in this case.

What does the Mother say?

20. The Mother agrees the Daughter left the care of the Father on 8 July 2020 when she was collected from her place of employment that day by her elder brother. It was intended she would stay with her elder brother however the Daughter decided she wanted to ‘come home’ and live with the Mother. The Mother expressed at the hearing:[4]

Then she contacted me, both her and [a sibling] contacted me, and asked me – [Sister] asked me to go and pick her up because she didn’t want to stay at [the sibling’s], she wanted to come back home.

[4] Transcript of Proceedings dated 26 April 2022, page 26, lines 19-21. 

The Father was told the Daughter had gone to live with her elder sister to avoid conflict with him. Her sister is married and lives with her husband and their children, and apart from her parents. The telephone conversation with Centrelink on 22 September 2020, records the Mother as saying the Daughter had left the Father’s care for emotional reasons and they have decided not to disclose to the Father that the Daughter is in the Mother’s care.[5]

[5] Exhibit 1, T Documents, T19, page 109.

21. According to the Mother, the elder brother drove the Daughter back to the Father’s place to collect her belongings and then to the Mother’s residence to live with her. It seems a key to his residence was left hidden for that purpose. The elder brother was driving the Daughter’s car at the time, which had been stored at her sister’s place for convenience. It seems the Daughter had purchased her own car from her earnings from casual employment ahead of getting her driver licence. The elder brother was asked and refused to write a letter confirming what had happened, presumably also to avoid conflict.

22. The Mother says the Daughter lived with her until 20 January 2021, being 2 days after she turned 16, then relocated to live with the elder sister. The Mother’s position is the Daughter lived with her 100% of the time from 8 July 2020 to 19 January 2021.

What does the Father say?

23. The Father agrees the Daughter was collected by her elder brother on 8 July 2020 and he says she was taken to her older sister’s place to live and not to her Mother’s place. He asserts several witnesses confirm the Daughter was living with her elder sister. Sometime in August or September 2020 he gathered the remaining belongings of the Daughter and delivered them to the elder sister’s place. According to the Mother, the Daughter’s belongings were ‘dumped’ at the front gate where the elder sister lived, and she was told that by the elder brother of the Daughter. This decision does not turn on when and how the belongings were left with the elder sister.

What did the elder sister say?

24. The Father relies on the statutory declaration dated 27 January 2021 signed under oath by the elder sister.[6] The statutory declaration was attached as supporting evidence to an application to include the Daughter as a relative of the aggrieved party, being the elder sister, for variation of an existing protection order. In the statutory declaration the elder sister says, amongst other things, at section 5, ‘Details of Variation’:

‘[The Daughter] has come to live with me and my family since July 2020.’

‘The named person [the Daughter] needed to be added is my biological sister, who is now living with me, my husband & children since 19/7/20.’[7]

[6] Exhibit 1, T Documents, T33, page 162.

[7] Ibid, T33 page 161.

25. The Mother says the elder sister was mistaken in the words she used in the statutory declaration. The elder sister was not called as a witness, so the Tribunal was unable to hear from her about the alleged mistake. The Mother was asked if she would obtain a statement or further statutory declaration from the elder sister confirming the error. 14 days were allowed for final submissions and no such statement was provided to the Tribunal. The Tribunal notes the statutory declaration is dated one week after the Mother says the Daughter went to live with the elder sister.

Other witness statements

26. The property manager at the real estate agency which manages the property where the Mother lives says on 8 September 2020:

‘As per lease conditions, on the 8 July 2020 I was advised [the Daughter] would be residing permanently at [the Mother’s] address and that she was no longer going between the two parents any longer.

I have conducted multiple routine inspections at the property and seen [the Daughter’s] belongings at the property and have also seen [the Daughter] at the property.’[8]

[8] Exhibit 1, T Documents, T13, page 103.

27. Whilst it appears this is compelling evidence in support of the position of the Mother, to state she has seen the Daughter and her belongings at the property doesn’t mean in and of itself the Daughter was living there. The Mother may have been storing some of the Daughter’s belongings and the Daughter may have been visiting the Mother at the time of the inspections. The notification of the Daughter living at the residence may have been because the Mother anticipated the Daughter would be living with her, although how the Mother knew on 8 July 2020 the Daughter would be living with her when she was collected after work that afternoon is not explained.

28. The wife of the Father offered an e-mail dated 9 September 2020 marked ‘To whom it may concern’. Curiously it was sent to the Father rather than say the Registrar or the Tribunal. In the e-mail she states:[9]

‘I have seen [the Daughter] dropped off and picked up at the school by her sister [redacted] on numerous occasions. It is my belief [the Daughter] has not spent one night this year at her mothers house yet she is trying to claim 100% of the care.’

[9] Ibid, T14 page 104.

Just because she has seen the Daughter dropped off at school by her elder sister doesn’t mean she is or isn’t living with her elder sister. It may well be her belief the Daughter has not spent one night in 2020 at the Mother’s house however she was not called as witness and given she is married to the Father her evidence is best corroborated by an external source to carry any weight in the case.

29. There is another e-mail dated 10 September 2020[10] from the Father to his wife which appears to contain an extract from a submission made direct to the Registrar. It deals with the assertion the Daughter is financially supporting herself and how, he says, the Mother is ‘ripping off the system’, none of which is relevant to this decision, which only concerns where the Daughter was living after she left his care on 8 July 2020.

[10] Ibid, T15, page 105.

30. On 10 September 2020, a person identified by the Father as a former resident of a property owned by him, sent an e-mail to the Father stating to the best of her knowledge and belief the Daughter had been living with her elder sister since 8 July 2020. She also says she regularly comes to town and has never seen the Daughter with the Mother or at the Mother’s residence. She also states she has seen the elder sister drop the Daughter to her place of work. Again, she states it is her belief the Daughter has not spent any time with the Mother since leaving the care of the Father on 8 July 2020.[11]

[11] Ibid, T16, page 106.

31. The Mother stated at the hearing:[12]

Yes and if you contacted [the friend] right now and asked her, [the friend] would tell you that this statement was done up by [Wife of] XKXG and taken to [the friend] to sign off on and she actually retracts her statement.

[12] Transcript of Proceedings dated 26 April 2022, page 15 lines 14-17.

She had been a tenant at the former matrimonial home of the Mother and the Father, and the Father said this person had been evicted from the property and was now hostile to him. Whatever the circumstances of this person and her e-mail, it is based on her ‘best knowledge and belief’ and notes not seeing the Daughter with the Mother or at her residence. The closest this e-mail comes to being contemporaneous evidence is the statement she had seen the Daughter dropped off at work by her older sister. Just because the author of this e-mail had not seen the Daughter with the Mother or at her residence and had seen her being dropped off at work by her elder sister doesn’t identify where the Daughter was living. The Tribunal finds little weight can be placed on this e-mail for that reason.

32. On 18 September 2020, the manager of the business where the Daughter was then working wrote an open letter describing what she says was the Daughter’s state of mind living with the Father, which is not relevant to this decision. Her letter goes on to conclude:

‘On the 8 July 2020, [the Daughter] returned to live with her Mother [name redacted]. [The Daughter’s] confidence is growing more and more each day. She smiles and laughs again.’

As with the other statements in support of the Mother and the Father, little weight can be placed on this letter because it is essentially hearsay and deals more with the state of mind of the Daughter with no explicit statement of how she knows where the Daughter was living at the relevant time.

33. On the balance of probabilities, the Tribunal finds the Daughter went to live with her elder sister and not with her Mother on or shortly after 8 July 2020 because:

a.The evidence of the Mother and the Father is so highly conflicted neither can be relied on,

b.The various statements of others in support of the Mother and the Father carry little weight for the reasons given above, and

c.The statutory declaration of the elder sister of the Daughter is very date specific and made under oath so it is to be believed at face value. The Mother was asked to obtain a statement from the elder sister correcting her so called mistake with the dates it contained, and nothing was forthcoming.

34. Accordingly, the Tribunal finds under s 49 of the Assessment Act neither the Mother nor the Father had care of the Daughter from 8 July 2020 and therefore the percentage of care of each parent is nil from that date.

CONCLUSION

35. Where the Daughter went to live after she left the care of her Father on 8 July 2020 until she moved in to live with her elder sister on 20 January 2021 cannot be determined with precision by the evidence in this case.

36. The evidence of the Mother and the Father is highly conflicted and all but one of the statements of support for the parents carries carry little weight. The evidence that can be relied on the most is the statutory declaration of the elder sister of the Daughter who states the Daughter went to live with her in July 2020.

DECISION

37.  The decision under review is affirmed. That means the care of the Daughter from 8 July 2020 is 0% to the Mother and 0% to the Father.

I certify that the preceding 37 (thirty-seven) reasons for the decision herein of Member P Ranson

………………[SGD]…………………..
Associate
Dated: 1 June 2022

Date of Hearing:	26 April 2022
Applicant:	By Microsoft Teams
Solicitor for the Respondent:	Mr Chris Murphy
Other Party	By Microsoft Teams