Rudling and Child Support Registrar (Child support)

[2019] AATA 1220

Rudling and Child Support Registrar (Child support) [2019] AATA 1220 (29 March 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC015687

APPLICANT:  Mr Rudling

OTHER PARTY:  Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  29 March 2019

DECISION:

The decision under review is set aside and, in substitution, the Tribunal decides to not record a change in the care of [Child 1].

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change - existing percentage of care determinations should not be revoked - decision under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information so as not to identify individuals as required  by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988. 

REASONS FOR DECISION

1. Mr Rudling and Ms [A] are the parents of [Child 1] who was born in 2004 and [Child 2] who was born in 2006. A child support case was registered with the Department of Human Services – Child Support (“the CSA”), as it is now called, in 2009. This case concerns the parents’ recorded care of [Child 1].

2. By way of background, on 29 June 2016, Mr Rudling advised Centrelink that he had 95% care of the children from 1 April 2015. He was, at the time, recorded by Centrelink as having 50% care of the children. Centrelink decided not to record a change in care. Mr Rudling sought review of that decision, and he continued seeking review until the matter ultimately came before the General Division of this Tribunal which set aside the decision under review and substituted a decision “that there was a change in the pattern of care of the children which occurred on 1 April 2015 whereby [Mr Rudling] had 85% care of the children and [Ms [A]] had 15% care of the children.”

3. So far as is relevant for present purposes, the decision of the General Division of the Tribunal resulted in the CSA deciding to record Mr Rudling as providing 85% care and Ms [A] as providing 15% care to [Child 1], with effect from 1 April 2015.

4. According to the hearing papers provided by the CSA in the current matter, on 5 February 2018, Ms [A] informed Centrelink that she had been providing 100% care to [Child 1] from 28 January 2018. Centrelink decided to not record a change in care. It appears that neither parent sought review of that decision.

5. On 8 August 2018, Ms [A] informed the CSA that she had been providing 100% care to [Child 1] from 1 July 2017. The CSA subsequently decided to record Mr Rudling as providing 0% care and Ms [A] as providing 100% care, with effect from 8 August 2018. Mr Rudling objected to that decision and an objections officer disallowed his objection. He sought further review by the Tribunal. Ms [A] was invited to apply to be made a party to the proceedings but she did not make that application. I heard the matter on 29 March 2019. I spoke to Mr Rudling by conference phone.

6. Mr Rudling stated that Ms [A] is an alcoholic and she does not provide a fixed pattern of care, but she provides some care, and the earlier decision to record her as providing 15% care reflected her provision of occasional care. He said she provided two weeks of care in July 2018, which was consistent with her broader pattern of occasional care that equated to 15% care. He added that every six to twelve months, Ms [A] provides a more significant period of care and she contacts Centrelink or the CSA claiming she provides 100% care from when her most recent provision of care commenced, but in doing so she fails to take into account that she is already recorded as providing 15% care on the basis of her occasional provision of care.

7. Ms [A] provided the CSA with a number of witness statements. Most of the witnesses provided hearsay evidence on the basis of what Ms [A] had told them. However, Ms [A] also provided a statement from a Mr [B] who stated, and Mr Rudling confirmed, that he is a roommate of Ms [A]’s. Mr [B] stated on 28 August 2018 that [Child 1] had been living with Ms [A] at their home since 1 July 2018. Mr Rudling stated that Mr [B] is also an alcoholic and he submitted, in effect, that Mr [B] is an unreliable witness. Mr Rudling added that Mr [B] wrote a similar letter in respect of the earlier disputed care that was ultimately decided in Mr Rudling’s favour by the General Division of the Tribunal.

8. In reaching my decision I have also taken into account that Mr Rudling participated in the hearing, gave sworn evidence, and made himself available to be questioned in respect of the detail of his evidence, and Ms [A] did not do so. On balance, I consider Mr Rudling’s evidence to be more reliable evidence on point. I find that Ms [A] provided approximately two weeks of care in July 2018, at which time she was recorded as providing 15% care on the basis that she provided occasional care throughout the year. Her provision of approximately two weeks of care in July 2018 was not inconsistent with the provision of 15% care per year. To make a new care decision, a decision maker must be satisfied that the care that is actually taking place does not correspond with the recorded care: sections 54F and 54G of the Child Support (Assessment) Act 1989. I am not so satisfied, and for that reason the decision to record a change in care will be set aside.

DECISION

The decision under review is set aside and, in substitution, the Tribunal decides to not record a change in the care of [Child 1].