Tadros and Morden (Child support)

[2022] AATA 641

Tadros and Morden (Child support) [2022] AATA 641 (7 March 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC023011

APPLICANT:  Mr Tadros

OTHER PARTIES:  Child Support Registrar

Ms Morden

TRIBUNAL:Member K Dordevic

DECISION DATE:  7 March 2022

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – decision under review affirmed

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 involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. Mr Tadros (the father) and Ms Morden (the mother) are the parents of [the child]. This application concerns the child’s care from 16 July 2020.

2. From 26 June 2009 Services Australia – Child Support recorded the care of the child as 100% to the mother and 0% to the father.

3. On 16 July 2021 the father notified Child Support that the child was living with her friends 70% of the time from 16 July 2020. His application was accepted on 30 August 2021 and Child Support amended the care record to reflect that the mother was providing 29% care of the child and the father was providing 0% care from 16 July 2020.

4. The mother objected to the decision on 6 September 2021. The objection was allowed on 11 December 2021, with the decision being that there were no grounds to revoke the previous care determination. The father sought review of that decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) on 23 December 2021.

5. The matter was heard on 2 March 2022. The father appeared by MS Teams audio. The tribunal was unable to contact the mother on her nominated telephone number, noting that three messages were left asking that she make herself available for the hearing. The Child Support Registrar elected not to attend the hearing. The matter was deferred until close of business on 4 March 2022 to allow the father further time to provide supporting documents. The mother contacted the tribunal on 3 March 2022, stating that she had been contacted on her previous mobile, which she had just happened to check. She confirmed that she had received the hearing papers but had discarded them. She advised that she may send an email outlining her position.

6. No correspondence was received by either party by close of business on 4 March 2022. The tribunal reached its decision on 7 March 2022. In reaching its decision, the tribunal also considered the documentation provided by Child Support (folios 1 to 289).

ISSUES

1. The statutory provisions relevant to this review are outlined in the Child Support (Assessment) Act 1989 (the Act).

2. The issue which arises in this case is whether Child Support accurately reflected the care of the child in its care percentage determination.

CONSIDERATION

1. Relevant to this matter, section 50 of the Act requires the primary decision-maker to consider the actual or likely pattern of care, by reference to a care period considered appropriate, having regard to all the circumstances. The primary decision-maker’s task is to determine the pattern of care based on actual care at the time of notification and the likely care thereafter. That is also the task of this tribunal.

2. In this matter, the father asserts that the mother ceased care of the child from July 2020. The mother denies that there was a change to the child’s care arrangements.

3. The father’s testimony at hearing can be summarised as follows. The Child Support investigations were simply not thorough enough. Neither he nor the mother provided any care to the child from 16 July 2020. Over an eight-month period he would regularly contact his daughter by telephone. On average they would speak about four times a week, and sometimes it would just be as little as once a week; there was no set pattern. Each time they spoke he noticed that the child was at her friend [Ms A]’s home. After this happened on a few occasions he asked to speak to her friend’s mother, [Ms B], who advised that the child lives with her for most of the time because she was not having a “good time at home”. He recalls there being no pattern of care; for example, the child would spend 10 days at [Ms B]’s home, return home for four days, go back to [Ms B]’s home for a couple of nights and then perhaps return to her mother’s home for two weeks. The child told him that she was not safe at home and this was why she spent so much time at her friend’s home. He recalls the child asking if she could come and live with him but unfortunately due to COVID‑19 the borders were closed and he could not organise to get her. He stressed that he was always happy to care for the child but the “timing was not always great”. In his view, this matter is one of principle; he has been paying child support for 15 years and he wants his money to go to [Ms B] and not the mother. He acknowledges that his daughter is now cared for by her mother again.

4. The tribunal invited the father to explain why he had not provided evidence from [Ms B] regarding the care arrangements. He explained that he had asked Child Support to give [Ms B] a call and he understood that they would do so. Later he spoke to [Ms B] and she advised him that she did not want to get involved. He feels that if Child Support had called her, he would have had a better chance of proving that there was a care change. He asked the tribunal if he could be given more time to persuade [Ms B] to provide written evidence to the tribunal regarding the care arrangements.

5. The tribunal put to the father that he advised Child Support that he would get some information from the child’s school counsellor. The father stated that he never contacted the counsellor; he cannot recall why he did not. When asked to describe [Ms B]’s relationship with the mother, the father stated that he understood that they had a friendly though superficial relationship. He recalls that [Ms B] said that the mother never provided her with money to meet the child’s expenses whilst in her care. He did not know whether or not [Ms A] would visit the mother’s home with the child (that is, whether there was a reciprocal arrangement in place), but he thinks probably not as the child was always trying to not spend time with her mother.

6. In support of her assertions that there was no change to the child’s care arrangements, the mother provided the following evidence:

   ·An undated declaration from [Ms C], youth minister, stating that to the best of her knowledge the child is cared for by the mother on a full-time basis. She has known the family since 2018, when the child first attended her youth ministry. She has contact with the child every week as she is her “friend and mentor” and often drives her to and from youth events on a Friday night;

   ·An undated statement from [Ms D], Aboriginal Elder. She has known the family for 15 years and understands that the mother has full care of the child, notwithstanding the fact that the child occasionally spends a weekend at her grandmother’s home or has a sleepover at her friends’ homes. She has regular contact with the family and visits them when COVID-19 lockdowns permit;

   ·A letter dated 2 November 2021 from [Ms E], maternal grandmother, confirming that the child has been in the mother’s sole care since her birth. She is aware that the child has sleepovers with friends and confirmed she also spends nights at her home; and

   ·A statutory declaration dated 2 November 2021 completed by [Ms F], close friend of the mother, who states that to the best of her knowledge and observation the child has resided with her mother on a full-time basis. On occasion the child will visit her home as she is friends with her daughter, whom she considers a sister. It is not “unusual in Aboriginal culture for families to be very close and offer ongoing supports to all children in the community”. Her understanding is that the mother is solely responsible for the child’s care, safety, health and general wellbeing.

7. The tribunal invited the father to comment about the documentary evidence provided by the mother. He stated that he had never heard of [Ms C], but he did know that the child went to youth group and was collected by a woman and it was likely “that lady” was [Ms C]. He reported that he does not know of [Ms D] and therefore cannot comment about her contact with the family. He explained that overall he has a very good relationship with the maternal grandmother but that about six to seven weeks ago they had an argument. She had asked him to stay away. He confirmed that [Ms E] had written her statement before the breakdown in their relationship. And, finally, he reported that he does not know of [Ms F] but thought her daughter’s name sounded familiar.

8. In the tribunal’s view, it is curious that the father has not provided any evidence regarding the child’s care arrangements from the caregiver [Ms B] who has apparently advised him that she cares for the child 70% of the time. As a matter of fact, he has not provided any evidence to support his contention that the mother’s care fell to about 30%. He had advised Child Support and this tribunal that he would provide such evidence but never did.

9. Having said that, the tribunal did not find the evidence provided by the maternal grandmother particularly persuasive given her relationship with the mother. It is possible that it is tainted by their relationship, and, in any event, lacks sufficient detail. Similarly, the tribunal gave little weight to the evidence provided by [Ms F], given her close relationship with the mother. It is unclear the nature of [Ms D]’s relationship with the mother, and so, again, the tribunal gave it little evidentiary weight.

10. However, the tribunal found the evidence from the child’s youth worker, [Ms C], particularly persuasive. There is no apparent relationship between [Ms C] and the mother. [Ms C] reports that she sees the child on a weekly basis and describes herself as the child’s friend and mentor. In such circumstances, there is no reason to suggest that the child would not keep [Ms C] abreast of her living arrangements. Therefore, the tribunal accepts [Ms C]’s statement that she understands that the child lives with the mother on a full-time basis.

11. Thus, the tribunal is satisfied that there are no grounds on which to revoke the care determination of 100% care to the mother and 0% to the father. The decision under review is therefore correct.

DECISION

The decision under review is affirmed.