Tatro and Duckworth (Child support)

[2023] AATA 3746

Tatro and Duckworth (Child support) [2023] AATA 3746 (26 September 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/SC025945

APPLICANT:  Ms Tatro

OTHER PARTIES:  Child Support Registrar

Mr Duckworth

TRIBUNAL:Member M Douglas

DECISION DATE:  26 September 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that:

• Pursuant to subsection 54F(1) of the Child Support (Assessment) Act 1989, Mr Duckworth’s percentage of care for [Child 1] is revoked;

• In accordance with subparagraph 54F(3)(b)(i) the revocation of Mr Duckworth’s percentage of care for [Child 1] takes effect on 17 December 2021;

• Pursuant to subsection 50(2), Mr Duckworth’s percentage of care for [Child 1] is determined to be 0% for the period 18 December 2021 to 26 January 2022 and 100% from 27 January 2022.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made – 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 involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. Ms Tatro and Mr Duckworth are the parents of [Child 1], for whom administrative assessments of child support were issued covering 24 January 2017 to 13 June 2022. The care percentages for [Child 1] that were used in the assessment as at 18 December 2021 were 100% for Mr Duckworth and 0% for Ms Tatro. On 21 November 2022 Ms Tatro advised Services Australia - Child Support (Child Support) that the care of [Child 1] had changed for the period 18 December 2021 to 27 January 2022 such that [Child 1] had resided with her for the whole of that period. She advised Child Support that from 27 January 2022 [Child 1] again went to reside with Mr Duckworth for 100% of the time.

2. Child Support wrote to Mr Duckworth on 22 November 2022 advising him of what Ms Tatro had informed it regarding the care of [Child 1]. On that same date Mr Duckworth contacted Child Support and advised it that what Ms Tatro said was “rubbish” and that [Child 1] spent a couple of nights in Ms Tatro’s care and not weeks. Mr Duckworth again contacted Child Support again on 1 December 2022 and advised it that he had just remembered that [Child 1] stayed with Ms Tatro after Christmas as he had COVID-19.

3. On 16 December 2022 Child Support decided not to revoke the existing percentages of care for [Child 1]. It notified Ms Tatro and Mr Duckworth of this by letters sent to each of them dated 16 December 2022.

4. On 21 December 2022 Ms Tatro objected to that decision. On 15 March 2023 Child Support disallowed her objection. Ms Tatro has now applied to the Tribunal for review of that objection decision.

5. The Tribunal held an audio hearing on 26 September 2023 of Ms Tatro’s application, in which both Ms Tatro and Mr Duckworth participated. Each gave affirmed oral evidence. The Tribunal notes that Ms Tatro was accompanied by her partner [Partner A] during the hearing. Other than providing his support to Ms Tatro, [Partner A] did not participate. That is to say he did not give evidence or make submissions on Ms Tatro’s behalf.

6. The Tribunal has had regard to the oral evidence of Ms Tatro and Mr Duckworth. The Tribunal has also had regard to the documents Child Support provided the Tribunal in accordance with section 37A(1) of the Administrative Appeals Tribunal Act 1975 (the Child Support file) and to documents Ms Tatro provided to the Tribunal which were marked A1-A84.

THE EVIDENCE

1. Ms Tatro’s evidence was that Mr Duckworth rang her up around the 18 December 2021 to let her know that he was “kicking [Child 1] out” and that he would drop [Child 1] to her house. Ms Tatro said that she recalled that [Child 1] then arrived at her house and was tearful. Ms Tatro said that [Child 1] remained with her until 26 January 2022 and then returned to Mr Duckworth’s residence to enable him to re-commence his schooling.

2. Ms Tatro’s evidence was that she did not inform Child Support earlier than 21 November 2022 of this because she was not aware that Mr Duckworth was still claiming child support from her for the period during which [Child 1] resided with her. This was so, notwithstanding that Child Support was still during this period deducting child support from her pay. Her evidence was that around 21 November 2022 she mentioned to someone at Child Support that [Child 1] had been staying with her and that person told her that she could seek to have the care percentage for [Child 1] for that period changed. It was thereupon that she did so.

3. Mr Duckworth’s evidence to the Tribunal was essentially a repeat of what he had told Child Support. That is, that [Child 1] stayed with Ms Tatro for a few days after the school holidays started on 1 December 2021 and stayed with her for about a week just after Christmas 2022 because he tested positive for COVID-19. Mr Duckworth said that [Child 1] is an asthmatic and he considered that it was necessary that he stay with Ms Tatro for that period to avoid the risk of his contracting COVID-19.

4. Ms Tatro presented to Child Support copies of several screenshots from her phone depicting text messages that she had exchanged with her partner [Partner A], with [Child 1] and with Mr Duckworth. The earliest of those messages was one that she exchanged with her partner [Partner A], which message included:

   [Child 1] is staying with me. His Dad kicked him out.[1]

   [1] Page 9 of the Child Support file.

5. On 21 December 2021 she sent a text to Mr Duckworth in which she said: “Hi [Mr Duckworth], [Child 1] said you want to pop over and talk to him?”. She sent a further text that day at 8.02pm in which she said: “just grabbing fish and chips and will walk back to mine with [Child 1] x”. Mr Duckworth responded to that text at 8.22pm saying: “just finished coming now”.[2]

   [2] Page 109 of the Child Support file.

6. On 22 December 2021 Ms Tatro and [Child 1] sent each other the following texts:

   Ms Tatro:can you get the sofa blanket out of the washing machine please and hang in the front room. I’ll rewash the stuff on the line you will be soaked x

   [Child 1]:Okay no worries will do now[3]

   [3] Page 102 of the Child Support file.

7. On 23 December 2021 Ms Tatro and [Child 1] exchanged the following texts:

   Ms Tatro:             U up yet darling? xx

   [Child 1]:             Ye just woke up.[4]

   [4] Page 103 of the Child Support file.

8. On 26 December 2021 [Child 1] sent Ms Tatro a text advising “I’ll be back in 30”, to which Ms Tatro responded “ok just indoors x”.[5] On 23 December 2021 Ms Tatro sent [Child 1] a text asking him: “do you have your key darling Im gonna crash xx”.[6]

   [5] Page 100 of the Child Support file.

   [6] Page 102 of the Child Support file.

9. On 24 December 2021 Ms Tatro and [Child 1] exchanged texts with each other that included the following:

   Ms Tatro:Getting bus back now xx

   [Child 1]:Ok sweet i’m still at [location]

   Ms Tatro:no rush. I’ll put us on a steak xx[7]

   [7] Page 101 of the Child Support file.

10. On 6 January 2022 Ms Tatro sent [Child 1] a text which read: “Can you grab me a loaf of bread and a bat of chocolate and I will transfer you the money xx”.[8]

    [8] Page 97 of the Child Support file.

11. On 7 January 2022 Ms Tatro sent [Child 1] a text that read as follows:

    Hi darling hope your course went well. Call me when u r finished. I tieded [sic] up, got yoy shopping; 1/2 roast chicken potatoes and broccoli in the fridge, lasagne, butter, cheese, biscuits and fruit and the modern [sic] has arrived so you have internet all week xx.[9]

    [9] Page 97 of the Child Support file.

12. On 26 January 2022 [Child 1] and Ms Tatro exchanged the following text messages with each other:

    [Child 1]:Can U msg me before u come home and me and my mates will leave

    Ms Tatro:Of course Im gonna be here til at least sunset xx make sure my door of my bedroom is closed x

    [Child 1]:Ye already done cheers

    Ms Tatro:thanks x [10]

    [10] Page 14 of the Child Support file.

13. The Tribunal considers that the several screenshots from Ms Tatro’s phone depicting texts that she sent and received from [Child 1] and from others relating to [Child 1] provide reliable corroboration of her oral evidence that during the period 18 December 2021 to 26 January 2022 [Child 1] resided with her all of the time and not with Mr Duckworth. The texts between her and [Child 1] relate to the prosaic matters of daily life, such as buying food, hanging out washing and getting keys cut. They confirm, as just said, in the Tribunal’s view that [Child 1] was residing with Ms Tatro for the period that she says he was.

14. The Tribunal consequently prefers Ms Tatro’s evidence over Mr Duckworth’s evidence. The Tribunal therefore finds that [Child 1] resided with Ms Tatro all of the time between 18 December 2021 and 26 January 2022.

CONSIDERATION

1. Sections 54F and 54G of the Child Support (Assessment) Act 1989 (the Act) stipulate when Child Support, and the Tribunal in its place, is required to revoke a parent’s percentage of care for their child. The criteria specified in paragraphs 54G(1)(c) and (d) are not met in this case such that section 54G is not engaged.

2. The requirements of subsection 54F(1) are met. This is because, as the Tribunal has just indicated, Child Support became aware, on 21 November 2022, that there had been a change in the care of [Child 1] from 18 December 2021 and that change in the care of [Child 1] was such that if care percentages were determined under sections 49 and 50 of the Act then both Ms Tatro and Mr Duckworth would have different cost percentages for [Child 1]. The care percentage for Ms Tatro would, if determined under section 50 of the Act, be 100% for a care period of 18 December 2021 to 26 January 2022. In the Tribunal’s view that would be the appropriate care period for the purposes of paragraph 50(1)(b) given that it is known from the evidence what care each of the parents had of [Child 1] during this period. Mr Duckworth’s care percentage during the care period would, if determined under section 49 of the Act, be 0%.

3. Subsection 54F(3) stipulates the date on which a revocation of a care determination is to take effect. In this case, because Child Support became aware of the change of care of [Child 1] more than 28 days after that change of care occurred, the relevant paragraph regulating the date upon which the care percentages for [Child 1] are to be revoked is paragraph 54F(3)(b) which reads as follows:

   if the Registrar or Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person and:

   (i) the responsible person's care of the child has increased--the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter; or

(ii) the responsible person's care of the child has reduced--the day before the change of care day.

1. The term “that matter” in that subparagraph is a reference to the change in care of [Child 1].

2. In accordance with subparagraph 54F(3)(b)(ii) the date upon which the revocation of Mr Duckworth’s percentage of care for [Child 1] pursuant to subsection 54F(1) is 17 December 2021. For Ms Tatro the revocation of her percentage of care would be 20 November 2022; however, as at that date the assessment for [Child 1] had already ended because he had attained 18 years of age. Consequently, revoking Ms Tatro’s percentage of care becomes nugatory.

3. Subsections 49(1) and 50(1) of the Act requires the Tribunal, standing in the place of Child Support, to determine a new percentage of care for Mr Duckworth upon the revocation of his existing percentage of care. The replacement determination of his percentage of care can be bifurcated to accord with what the evidence substantiates his care of [Child 1] was subsequent to the revocation of his existing percentage of care. In other words, following the date upon which the revocation of his existing percentage of care takes effect there can be a determination of his percentage of care that stipulates a percentage for a particular period of time and another percentage for a subsequent period of time.[11] The evidence substantiates that between 18 December 2021 and 26 January 2022 Mr Duckworth had no care of [Child 1] but from 27 January 2022 he had care of [Child 1] for all of the time. Consequently, the percentages of care to be determined for him under both sections 49 and 50 are 0% for the period 18 December 2021 to 26 January 2022 and 100% from 27 January 2022.

   [11] Child Support Registrar v DQFY [2023] FCA 601 [92]-[96]

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that:

• Pursuant to subsection 54F(1) of the Child Support (Assessment) Act 1989, Mr Duckworth’s percentage of care for [Child 1] is revoked;

• In accordance with subparagraph 54F(3)(b)(i) the revocation of Mr Duckworth’s percentage of care for [Child 1] takes effect on 17 December 2021;

• Pursuant to subsection 50(2), Mr Duckworth’s percentage of care for [Child 1] is determined to be 0% for the period 18 December 2021 to 26 January 2022 and 100% from 27 January 2022.