TKFR and Child Support Registrar (Child support second review)

[2022] AATA 3341

TKFR and Child Support Registrar (Child support second review) [2022] AATA 3341 (13 October 2022)

Division:GENERAL DIVISION

File Numbers:2021/2967         

Re:TKFR  

APPLICANT

AndChild Support Registrar

RESPONDENT

AndJGXG

OTHER PARTY

Decision

Tribunal:Senior Member Dr M Evans-Bonner

Date:13 October 2022

Place:Perth

The Reviewable Decision, being the AAT1 Decision dated 23 March 2021, is set aside and is substituted with the new decision that:

(a)       the Existing Care Determination is revoked;

(b)new care determinations are made that the Mother had 100% care and the Father had 0% care of the child from 5 December 2019;

(c)the date of effect of the revocation of the Existing Care Determination is 20 April 2020.

..............[Sgd]..........................................................

Senior Member Dr M Evans-Bonner

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 (Cth).

Catchwords

CHILD SUPPORT – percentage of care decision – whether there was a change in care – dispute about percentage of care – Tribunal satisfied there was a change in care – existing care determination revoked – new care determinations made – Mother notified Agency more than 28 days after the date of the change of care – date of effect of revocation – practical effect of this decision is that the Objection Decision is upheld – AAT1 decision set aside and substituted

Legislation

Child Support (Assessment) Act 1989 (Cth) ss 49, 50, 54A, 54F, 54F(3)(b)(i), 54G, 55C

Cases

Parent A and Child Support Registrar and Anor [2013] AATA 562

Polec & Staker & Anor [2011] FMCAfam 959

Secondary Materials

Guides to Social Policy: Child Support Guide [2.2.1]

REASONS FOR DECISION

Senior Member Dr M Evans-Bonner

13 October 2022

background

1. The Father (JGXG) and the Mother (TKFR) are the separated parents of a minor child, A, born on 3 February 2017.

2. There is a dispute between the Father and the Mother regarding the percentage of care provided to A from 5 December 2019.

3. From 7 November 2019, the child support assessment was based upon the Mother having 86% care and the Father having 14% care of A (T9/64). I will refer to this as the Existing Care Determination.

   Advice of a change in care

4. On 21 April 2020, the Mother notified the Child Support Agency (Agency) that she had 100% care of A from 5 December 2019 (T19/88-89).

5. On 29 April 2020, the Agency wrote to the Father to state that the Mother had advised them that the care percentages for A had changed and to contact the Agency to discuss these changes (T20/92). However, post-hearing submissions and evidence confirmed that the letter received by the Father was blank (see also T35/124).

6. The Agency unsuccessfully tried to contact the Father by telephone to confirm the change in care on 15 May 2020 and 18 May 2020, and left messages for him (T22; T23).

7. In letters dated 18 May 2020 (T24; T25), the Agency advised both the Mother and the Father that they had updated the child support percentages to reflect a change in care of A, where the Mother had 100% care and the Father had 0% care (Original Decision). 

8. On 4 June 2020, the Agency sent the parties a letter with the same percentage of care decision, but with differing dates of effect because the Mother had advised of the change in care more than 28 days after it happened (T31; T32).

   The father’s objection

9. The Father lodged an objection to the Original Decision on 22 June 2020. He was either seven days late, based on the date of the Original Decision being 18 May 2020, or within time, based on the subsequent letter of 4 June 2020. Given this additional letter of 4 June 2020, I find it is appropriate to regard the Father’s objection as being in time. When making his objection, the Father advised the Agency that he continued to provide care for A one night per week, which increased to two to three nights a week from April 2020 (T49/146).

10. However, in a decision dated 29 September 2020, a delegate of the Child Support Registrar (Registrar) disallowed the Father’s objection, and found that the Mother had 100% care, and the Father had 0% care, of A from 5 December 2019 (T48) (Objection Decision).

    Aat1 proceedings

11. The Father sought review of the Objection Decision in the Social Services & Child Support Division of this Tribunal (AAT1). The Mother declined to be joined as a party in those proceedings. Consequently, the Mother did not attend the AAT1 hearing. Only the Father attended.

12. On 23 March 2021, the AAT1 decided that there was no change in care of A on 5 December 2019; and did not revoke the existing percentages of care for A of 14% for the Father, and 86% for the Mother (T2). The AAT1 decision is the Reviewable Decision.

    AAT2 proceedings

13. On 6 May 2021, the Mother lodged an application seeking review of the Reviewable Decision (T1) in the General Division of this Tribunal (AAT2).

14. The hearing of this application was on 5 April 2022. The Tribunal could not contact the Father and after numerous attempts proceeded without him. The Father subsequently contacted the Tribunal and the hearing was resumed on 2 May 2022 with both parties in attendance.

15. At the second hearing on 2 May 2022, the Father stated that he had received blank letters from the Agency which affected his ability to object on time (transcript/35-36). I therefore directed for further submissions and evidence to be filed to confirm what had happened in this regard. As I have indicated above, it was only the letter of 29 April 2020 that was blank, which is of little consequence.   

    the issue

16. The issue before me is whether:

    (a)there was a change in the pattern of care for A on 5 December 2019 which required the Existing Care Determination to be revoked and new determinations to be made;

    (b)and if so, the date that the new percentage of care determinations should take effect.

17. For the reasons set out below, I have accepted the Mother’s evidence that there was a change in care on or before 5 December 2019 whereby she had 100% care of A and the Father had 0% care of A.

    evidence of care percentages

    The Mother’s evidence

18. The Mother’s evidence was that the Father stopped living with her and the child, A, on 25 March 2019. In October and November 2019, the Father would collect A approximately twice a week and take him to the shops to buy candy, the park or swimming for short periods of time.

19. The Mother said that she and the Father agreed that the Father would have the child for two days including one night a week, but that the Father did not honour the agreement and would only take the child for short periods of time for one or two hours (A1). She further explained that there would be days and months where she could not communicate with the Father.

20. The Mother said that the Father had A overnight on two occasions (she could not remember the dates) when she had shifts at work and that she paid the Father $50 on those occasions. She almost entirely disagreed with the Father’s list of dates between 8 December 2019 and 5 June 2020 where the Father claimed he had cared for A (T4). The Mother’s evidence was that the Father had not contributed financially to caring for the child, including buying clothes for him.

21. According to the Mother, the Father has had very little involvement in A’s life, apart from a two month period when they lived together. She stated in an email dated 2 December 2021 that the Father had not seen the son for more than a year (A1). At the second hearing the Mother stated that the Father, “has never been responsible for the child” and that she “covered for him” by not informing the Agency of his lack of care earlier because she thought it was required for the Father’s visa requirements. She admitted becoming frustrated with the Father and texting him that she had informed the Agency of the truth of the days that she looks after A, and telling him that he was “in trouble”.

22. With respect to the text messages produced by the Father, which I discuss below, the Mother’s evidence was that they were trying to make arrangements, but then often the Father would not show up when agreed. She described having to take the child to work with her on a couple of occasions when the Father did not take A at the time he and the Mother had arranged. She said on other occasions the Father would come over unannounced when she had already organised for others to look after the child. She described having to rely on her former husband, her older son, or friends to help care for A if she was working. 

23. The Mother’s evidence was corroborated by other documentary evidence, which I will now summarise:

    (a)A letter from a work colleague, N, dated 19 August 2020, confirmed that N had witnessed the Mother having to bring A to work because the Father was unable to look after him. N also stated that she had witnessed the Father dropping A off earlier than arranged before the Mother’s work shift ended, and that the Mother had to make alternative care arrangements for A (T43).

    (b)The Mother’s friend, Z, stated that for the last three years she had assisted the Mother to babysit A when the Mother was at work. She stated that since A’s birth she had observed that the Father was “barely there” and that the Mother would often ask her to babysit at the last minute because the Father had failed to pick the child up at the agreed time. She stated that if the Father did babysit A, he would only do so for a maximum of three hours. Z further stated that “at times” the Father had dropped A off at her house “halfway through the day without a good excuse” when he had agreed to care for the child for the whole day (T53/164). 

    (c)In an undated letter, the Mother’s former husband, E, who is the father of her eldest son and whom she is on good terms with, stated that he had been assisting to look after A when she was at work, and that he “never saw A’s father picking him up or bringing him anything” (T55/166).

    (d)A screenshot of text messages between the Mother and the Father received by the Agency on 19 August 2020 shows a bank payment confirmation for $50 paid to the Father on 6 June 2020 with the description “child care” (T44). This supports the Mother’s evidence that she paid the Father to have the child overnight on two occasions.  

    (e)An email letter dated 30 November 2021 from the Director and owner of A’s early learning centre confirms that A has attended the centre since 12 February 2020, one to four days per week and that the Mother brings him to the centre and picks him up. She confirmed that she has never met the Father (A1). Another letter from A’s kindergarten teacher, D, dated 1 December 2021, states that she has been A’s teacher in 2021 and that it was only the Mother, A’s older brother, and the parent’s of a kindergarten friend of A’s, who were authorised to collect him from school (A1). It is most unlikely that a parent who has care of a child for up to three nights per week, as the Father has claimed, would never have dropped off or picked up the child from kindergarten or his early learning centre. This evidence supports the Mother’s evidence that the Father has minimal, if any, contact with A and that she is the sole carer of the child.

    The Father’s evidence

24. The Father said that he moved out of the house he shared with the Mother and A in approximately March 2019. He stated that he had no contact with A until he moved into his own place in approximately June 2019. From December 2019, the Father stated that he cared for A “three days, two days, four days” for “five, six hours” or “a full 24 hours”, sometimes at short notice, and sometimes when the Mother had to work.

25. The Father was often evasive in his evidence and overall, I found his evidence to be unsatisfactory. For example, his answers were unclear when asked about whether A had his own space or a permanent bed set up in the Father’s one bedroom apartment, including “he would have his own play area out – obviously the hallway is his”.

26. His answers when asked about evidence that the Mother sometimes had to take A to work because she had no one to care for him were also unsatisfactory. For example, the Father stated that it was a “normal thing” that the Mother took A to work with her because “she doesn’t want to pay [a] babysitter”, and that if “her other son is not home, her eldest son is not home, then she would take him [A] to work”. This contradicts the Father’s evidence that he looked after A while the Mother was at work.

27. It also seems implausible that if the Father was caring for A for two, three or four nights a week that the Mother would need to take him to work. The Father admitted that the Mother had paid him $50 to look after A for extra time over and above what they had agreed, although he thought it was only on one occasion.

28. The Father was also very certain in his evidence that the Mother had telephoned the Agency regarding the change in care on 5 December 2019 (rather than on 21 April 2020). He said that he remembered because she had threatened him that she would tell the Agency there had been a change in care and that she had said, “you’re in trouble now”. He also said she had sent him a screenshot of a long call with the Agency, which he admitted was not in evidence before this Tribunal. When asked why she would give him ongoing care after such a threat his response was unsatisfactory, stating that “she changes a lot actually” referencing her “mood”.

29. The Father was asked about the letters from the Mother’s former husband, friend and work colleague who stated they had helped to care for A, and that the Mother had to take A with her to work on some occasions. He was asked why they would make those statements if A was being cared for by the Father as he had claimed. The Father stated (second hearing transcript/25):

    I can get you people, about 20 people or 30 people and write all those letters and really doesn’t mean nothing to them, and yes, I can create as much lies I can do, and then send it to you that yes, I’m very clean and clear, yes, and he’s not taking nothing - no custody of The Child. But probably I can - it’s solid evidence what I’ve given you here, by my text messages and my pictures, and all my diaries, that’s why it took me a while to gather all the information. So yes, yes, you can just have as many people, like, all the statements I can get you like 20 people if you like or whatever. 

30. Accordingly, I am not persuaded by a brief and undated letter that the Father produced from his neighbour stating that he “has been having A all along since the claimed date apart from the 2 weeks due to covid-19 lockdown” (T56/167).

31. As I mentioned above, the Father submitted a list of dates that he had care of A between 8 December 2019 and 5 June 2020 (T4). The list was in dot-point form and showed that the Father often picked up the son at 7am and dropped him off in the evenings between 5pm and 10pm (T4/47-53). At the hearing, I asked the Father how he compiled this list. He stated that it was compiled from emails, text, memory, and, when I suggested it to him, a calendar. I am not convinced that this reliance on several sources, including memory, is an accurate record. This evidence, which suggests that the Father cared for A several times per week, suggests a different version of events to the evidence of the Mother, her former husband, work colleague, friend, teacher and early learning centre owner, which I find to be more reliable than the Father’s evidence.

32. I find that it is more likely that the Father only had care of the child, A, overnight on a couple of occasions, as shown in a photo taken on 11 April 2020 at 12.07am showing the child awake and dressed (T18/87) and another photo of A’s face taken on 2 May 2020 at 4.11am, showing that A was awake at that time (T21/93). The text messages produced by the Father (T52) are not specific enough to support the Father’s assertions of having care of A overnight for two to four days a week. They show communications between the Mother and the Father concerning dropping off and picking up the child on 8 December 2019, 10 December 2019, 18 and 19 December 2019, 23 and 24 December 2019, 26 December 2019, 14 January 2020, 27 and 28 February 2020, 5 March 2020, 18 March 2020, 10 and 11 April 2020, 25 April 2020, 26 May 2020, and 5 June 2020. They tend to suggest some contact, but it is often unclear how long for and whether that contact eventuated. I also note an email from the Father to the Tribunal’s Registry on 24 November 2020 (T51) where he states that he last saw his son on 6 June 2020 and that he had not seen his son for six months.  

    consideration

33. Overall, I find the Mother’s evidence, which is supported by the evidence from third persons, to be more reliable and persuasive. The evidence supports a finding that the Mother had 100% care of A. I am not persuaded that the Father had 14% care of A. The Father appears to have minimal, if any, contact with the child. Any contact appears to be unreliable and brief with the Father expending minimal, if any, money on the child, including being paid by the Mother to have him overnight on two occasions. The evidence suggests he had less than 14% care, which would reduce his cost percentage to nil (s 55C of the Child Support (Assessment) Act 1989 (Cth) (Assessment Act).

34. Although the number of nights a child spends with a parent is the primary measure of care, (s 54A of the Assessment Act), the factors in Polec & Staker & Anor [2011] FMCAfam 959 (which are reproduced in the Child Support Guide at paragraph [2.2.1]) provide further guidance for determining whether and to what extent a person has care of a child. These include:

    ·     To what extent the person has control of the child, including having overall responsibility for the child and making

    o   major decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and

    o   arrangements for others to meet the needs of the child (delegated care).

    ·     To what extent the person meets the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra-curricular activities.

    ·     To what extent the person pays for the costs of meeting the needs of the child.

    ·     To what extent the person otherwise provides financial support for the child.

    …

35. I do not have evidence regarding the first factor, namely the making of major decisions concerning the child’s health, and so on. However, the evidence before me tends to suggest that the Mother made arrangements concerning delegated care, that the Mother provided the child with accommodation, clothing, food, childcare, emotional support and supervision, and that she paid the costs of meeting the needs of the child and otherwise financially supported the child.   

36. I am satisfied that there was no pattern of care for the child by the Father during the care period commencing on 5 December 2019 (s 49 of the Assessment Act). That is, based on the evidence before me, the Father had no “regular and intelligible form or sequence” (Parent A and Child Support Registrar and Anor [2013] AATA 562 at [33]) of care with informal care arrangements often not being honoured by him. Accordingly, I find that the Father had 0% of care of A during the care period. There was a consistent pattern of care for the Mother, and accordingly I find that she had 100% care of A during the care period (s 50 of the Assessment Act).

37. Section 54F of the Assessment Act provides that the Existing Care Determination must be revoked and replaced with new percentage of care determinations if there is a change to the cost percentage because the care of the child that is actually taking place does not correspond with the existing percentage of care. The Existing Care Determination provided for 14% to the Father and 86% to the Mother and does not reflect the percentage of care for A during the care period. Accordingly, I revoke the Existing Care Determination and replace it with the pattern of care that actually took place which is 100% to the Mother and 0% to the Father.

1. I am also satisfied that s 54G of the Assessment Act does not apply because the Mother did not notify the Agency of the change in care within a timeframe that was reasonable in the circumstances.

2. The Mother did not notify the Agency of the change in care until 21 April 2020. Therefore, notification occurred more than 28 days after the date of the change of care (5 December 2019). Applying s 54F(3)(b)(i) of the Assessment Act, the date of effect of the revocation of the Existing Care Determination was the day before she notified the Registrar, which would be 20 April 2020.

   conclusion

3. The practical effect of my decision is that the Objection Decision dated 29 September 2020, which disallowed the Father’s objection made on 18 May 2020 and found that the Mother had 100% care of the child from 5 December 2019, is upheld. However, as the Mother was outside of the 28 day statutory timeframe for advising the Agency of the change in care, the date of revocation of the Existing Care Determination is 20 April 2020 (rather than 5 December 2019).

   decision

4. The Reviewable Decision, being the AAT1 Decision dated 23 March 2021, is set aside and is substituted with the new decision that:

   (a)the Existing Care Determination is revoked;

   (b)new care determinations are made that the Mother had 100% care and the Father had 0% care of the child from 5 December 2019;

   (c)the date of effect of the revocation of the Existing Care Determination is 20 April 2020.

I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

................[Sgd]........................................................

Associate

Dated: 13 October 2022

Date of hearing:

5 April 2022 and 2 May 2022

Date final submissions received:

9 May 2022

Representative for the Applicant:

Self-represented

Representative for the Respondent:

Representative for the Other Party:    

Ms A Simpson, Services Australia

Self-represented