Wilder and Southgate (Child support)

[2020] AATA 579

Wilder and Southgate (Child support) [2020] AATA 579 (11 February 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC017636

APPLICANT:  Mr Wilder

OTHER PARTIES:  Child Support Registrar

Ms Southgate

TRIBUNAL:Member P Sperling

DECISION DATE:  11 February 2020

DECISION:

The tribunal affirms the decision under review.

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 affirmed

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.

REASONS FOR DECISION

BACKGROUND

1.Mr Wilder and Ms Southgate are the parents of [name deleted] (the child).

2.Prior to the period under consideration in this review, the Department of Human Services – Child Support (the Department) had determined that Mr Wilder had a percentage of care of 14% for the child and Ms Southgate had a percentage of care of 86% for the child from 21 July 2010.

3.On 17 January 2019, Ms Southgate notified the Department that the care of the child had changed and that she had 100% care of the child from 26 June 2016. The Department then identified that Ms Southgate had previously notified that she had 100% care of the child back in August 2017 but that this change had been incorrectly deleted and was not recorded. Following further discussion with Ms Southgate, she confirmed that the actual change in care to 100% care for Ms Southgate had occurred from 1 August 2017, not 26 June 2016.

4.Mr Wilder disputed that Ms Southgate had 100% care of the child from 1 August 2017 and said that he continued to have some care of the child after this date. He also advised that the child had been working full-time and living out of home for the last two years and therefore has not been in Ms Southgate’s 100% care from 1 August 2017.

5.On 11 June 2019 the Department decided to change the care determination to 100% care for Ms Southgate from 1 August 2017. Mr Wilder disagreed with the decision and lodged an objection on 13 August 2019. On 15 October 2019 an objections officer disallowed Mr Wilder’s objection.

6.On 16 October 2019 Mr Wilder lodged an application to the Administrative Appeals Tribunal (the tribunal) for a review of the decision. Ms Southgate was made a party to this review.  The hearing took place on 22 January 2020. Mr Wilder and Ms Southgate participated in the hearing via conference telephone and both gave sworn evidence. In making its decision the tribunal took into consideration the documents (hearing papers pages 1 to 159) provided by the Department, which were also sent to Mr Wilder and Ms Southgate.

7.Following the hearing the tribunal provided additional time to both parties to allow them to provide any further evidence on which they rely. On 6 February 2020 Ms Southgate provided an additional submission which was numbered and copied to all parties (B1 to B9).

8.Mr Wilder could not provide evidence within the timeframe allowed by the tribunal and he requested further time to obtain and submit his evidence. The tribunal refused Mr Wilder’s request for further time given that it had been one year since Ms Southgate had notified the change in care to the Department, six months since the Department had made its original decision and three months since Mr Wilder had lodged his application with the tribunal. The issues have been well known since the change in care notification occurred and the tribunal considers that Mr Wilder has had sufficient time to locate and submit any evidence on which he relies. Further, the tribunal had regard to the objectives set out in the Administrative Appeals Tribunal Act 1975 which require the tribunal to conduct reviews and make decisions in a timely way.

CONSIDERATION

9.The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act).

10.The legal issues for the tribunal in this case relate to an existing determination of care in place, which was that Mr Wilder had 14% care of the child and Ms Southgate had 86% care of the child. The tribunal must determine whether the existing determination of care is to be revoked and, if so, from what date a new determination of care is to be made.

Has there been a change in the care of the child?

11.The Act requires the decision maker to make point-in-time care decisions on the basis of what has happened up until the change in care is considered and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate and when such a divergence occurs, a parent can notify the Department and a new care determination can be made. However, the legislative test at first instance and on review remains the same: what had happened until the date of the notification and what was likely to happen thereafter?

12.Therefore in this case the tribunal is required to determine whether it was intended that the child was in Ms Southgate’s care 100% of the time from 1 August 2017 this date. In considering this matter the tribunal is of the view that it can take into account any evidence of the intended care arrangements for the child from 1 August 2017 as well as evidence pertaining to the actual care of the child up to 11 June 2019, which was the date of the Department’s original decision.

13.Mr Wilder stated at the hearing that the child left his care in August 2017 and went to live interstate with Ms Southgate without his knowledge or approval. He said that he visited her and cared for her overnight numerous times after that and it is therefore incorrect to say that he had 0% care of the child from 1 August 2017.

14.During the hearing and in his communication with the Department,[1] Mr Wilder told the Department that the child was in his overnight care on the following dates :

·four nights of care in the week of 13 October 2017;

·two nights of care on 13 and 14 August 2018;

·three nights of care from 1 September 2018;

·two nights of care from 13 October 2018; and

·two nights of care from 24 May 2019.

[1] Department papers page 137

15.During the hearing he stated that he had had care of the child on other occasions since 1 August 2017 but that these were the main times the child was in his care and noted that he had provided additional evidence to the Department which has not been considered or included in the hearing papers because the case was closed when the child turned 18 years of age. Mr Wilder did not provide any additional evidence to the tribunal as part of this review.

16.During the Department’s discussions with Mr Wilder on this matter, he also stated that the child told him that she had left school and has been working full-time in an apprenticeship from the age of 14 years and nine months and was living with her boyfriend and not with Ms Southgate. He also said that during this period the child complained that Ms Southgate was taking some of her wages from her and requiring her to do cleaning in the house. He further advised that he had offered to help the child complete her tax returns after Ms Southgate recommended that the child not submit tax returns. He maintained that child support arrangements are supposed to end if the child is not attending school which could be why Ms Southgate was trying to hide this.

17.The tribunal notes that Mr Wilder conceded in his oral evidence during the hearing that Ms Southgate had legal responsibility for the child from 1 August 2017 by virtue of the fact that the child was primarily living interstate with Ms Southgate. He said that he arranged to visit and have care of the child with the child directly because he did not want to communicate with Ms Southgate. He also said that from 1 August 2017 he expected to see the child for half of the school holidays and at other times that the child agreed to be with him but this was not an arrangement that he made directly with Ms Southgate.  He also acknowledged that Ms Southgate had responsibility for the child’s medical care from 1 August 2017.

18.Mr Wilder provided a range of third-party statements and a personal statement to support his claim that Ms Southgate did not have 100% care of the child from 1 August 2017. This evidence is summarised as follows:

Letter from Mr [Mr A] of 15 August 2019[2]

[2] Department papers page 126

19.This letter states that the child would be in Mr Wilder’s company when they would catch up over visits and that [Mr A] can confirm that, since 2015, Mr Wilder has continued to honour his vow and has been involved in the child’s life whenever he can.

Letter from the child’s paternal grandparents, Mr and Mrs Wilder of 19 August 2019[3]

[3] Department papers page 129

20.This letter states that Mr Wilder was eventually granted joint custody at which time he commenced visiting the child almost every fortnight in either [State 1] or buying her return tickets for her to stay with him during all school holidays since November 2009 until the present day.

Letter from [Ms B], Mr Wilder’s sister, undated[4]

[4] Department papers page 132

21.This letter states that at one stage the child was getting anxiety from flying so Mr Wilder drove up and back and also flew up to visit her many times. It also states that Mr Wilder stayed with [Ms B] at her house many times on the trips to help reduce the cost of coming to see the child all the time. If further notes that in 2017 Mr Wilder and his family drove up for three weeks at Christmas and spent the time at Ms [Ms B’s] house. Finally, it states that Mr Wilder has flown or driven to see the child at least six to seven times a year and has most recently come up in the last school holidays and taken the child out for the weekend for her 18th birthday.

22.During the hearing Mr Wilder told the tribunal that his parents and his sister had seen the child with him since August 2017 and could verify that he had had some care of the child. In response Ms Southgate said that the child has been estranged from Mr Wilder’s parents since Christmas 2017.

23.The tribunal also notes that Mr Wilder’s evidence to the Department about his care of the child has changed over time, as follows:

·     on 31 July 2019 Mr Wilder advised that the child has been living out of home for the last two years and working full-time and therefore has not been living with Ms Southgate;

·     on 13 August 2019 Mr Wilder advised that he had care of the child for more than 52 nights a year even though he lives in a different state and said that he had taken trips to stay with his family so that the child could stay with him and had picked the child up so that she could stay with him for a couple of weeks;

·     on 27 August 2019 Mr Wilder advised that he would more than likely have had 52 nights or more of care of the child and that he would provide specific dates;

·     on 28 August 2019 Mr Wilder provided dates of care, as outlined in paragraph 14 of these Reasons;

·     on 11 October 2019 Mr Wilder advised that the child has been working full-time from when she was 14 years and nine months old and lives with her boyfriend and not with Ms Southgate.

24.During the hearing the tribunal drew Mr Wilder’s attention to the fact that the dates of care that he gave to the Department on 28 August 2019 indicate that the number of nights of care he had was below regular care, and therefore his care percentage should be determined to be 0%.

25.Mr Wilder’s response was that there were many times that the child told Ms Southgate that she was staying overnight with other people but she was actually staying with Mr Wilder.

26.Ms Southgate stated at the hearing that she has had 100% care of the child since 1 August 2017. She said that as far as she is aware Mr Wilder has had no overnight care of the child since then. In her additional submission to the tribunal Ms Southgate provided various Facebook posts, photos and text messages which she said showed that the child was with her, and not with Mr Wilder, on 25 December 2017, 16 October 2017, 1 September 2018, 13 October 2018 and 24 May 2019 (B4 to B9).

27.Ms Southgate said that she is aware that Mr Wilder has visited [Location 1], where she lives with the child, because he had other family in the area, and that the child is also aware of this. However, Ms Southgate said that the child has told her that Mr Wilder has refused to see the child. She told the tribunal that she has had to comfort the child at times when Mr Wilder refused to see her.

28.During the hearing Ms Southgate strongly maintained that since August 2017 the child has lived with her continuously and stayed with her every night except on the few occasions when she stayed overnight with one of her girlfriends. She said that Mr Wilder’s claim that the child was living with her boyfriend is incorrect. She said that the child’s boyfriend lives in [a city] and the child has never lived with him. She advised that since August 2017 the child continued to attend school, TAFE and work on the [Location 1].

29.In response to the tribunal’s questions about the care of the child, Ms Southgate says that she has covered all of the child’s bills and expenses, except her phone bill which the child pays for herself. Ms Southgate said that she has not received any child support from Mr Wilder since the end of 2017. Ms Southgate also said that the child tells her when she goes out and where she is going. Further, she stated that the child is not required to pay any board or bond but that she helps with household chores such as cooking and cleaning. Ms Southgate noted that at the time of the hearing the child was working but that she was attending school in August 2017.

30.In her evidence to the Department Ms Southgate advised that the child does not have contact with her paternal grandparents and that Mr Wilder has only seen the child on a handful of occasions for about two hours since 2017.[5]  In her additional submission to the tribunal Ms Southgate advised that the child has had no contact with her paternal grandparents from 25 December 2017 until sometime in 2019 when she attended her grandfather’s birthday party (B2).

[5] Departmental papers page 133

31.Ms Southgate provided a number of third-party statements about care of the child from 1 August 2017 which can be summarised as follows:

Statutory declaration from [Ms C], the child’s adult sister, 23 April 2019[6]

[6] Department papers page 23

32.This declaration advises that [Ms C] has lived with the child all her life and states that the last time the child saw Mr Wilder was August 2017.

Statutory declaration from the child, 23 April 2019[7]

[7] Department papers page 24

33.Usually the tribunal is reluctant to accept evidence from a child for whom care is in dispute. However, in this case, the tribunal notes that the evidence provided is a witnessed statutory declaration which was made by the child two months before her 18th birthday. Given the age of the child at the time the document was written, the tribunal is prepared to take this evidence into consideration in this matter.

34.This statutory declaration states that the child flew out of [a city] on 1 August 2017 and has not seen Mr Wilder since this date. The declaration further states that since this time Mr Wilder has refused contact and that the child has tried to contact him since to sign her passport application but he not answered her calls and has blocked her phone number.

35.During the hearing Mr Wilder stated that the statutory declaration from the child was incorrect and that the child may have written it because she was upset with him for refusing to sign her passport application.

36.The tribunal considered all of the evidence and noted that the third-party statements provided by family and friends of Mr Wilder did not provide any specific evidence of the actual nights of care provide by Mr Wilder from 1 August 2017. The tribunal also noted that the information provided by Mr Wilder to the Department in various phone conversations during July and August 2019 and the evidence he provided during the hearing about his care of the child were inconsistent. Further, the tribunal notes that the actual dates on which he had care that Mr Wilder provided to the Department on 28 August 2019 comprised a total of 13 nights; that is, four nights from 1 August 2017 to 1 August 2018 and nine nights from 2 August 2018 to August 2019.

37.In paragraph 26 of these Reasons, the tribunal set out Ms Southgate’s evidence which she says shows that Mr Wilder did not have care of the child on these 13 nights. The tribunal is reasonably persuaded by Ms Southgate’s evidence in this regard. However in this case, even if the tribunal accepts that Mr Wilder did have overnight care of the child on the specific dates which he has provided, it is clear that these 13 nights of care would be insufficient for Mr Wilder to be determined in accordance with the Act to have had regular care of the child from 1 August 2017.

38.Having considered the circumstances in this matter and all of the available evidence, the tribunal has determined that the child was living with Ms Southgate and that Ms Southgate was responsible for, and making decisions about, the child from 1 August 2017. While the tribunal accepts that Mr Wilder may have been somewhat involved in the child’s life from this date, the tribunal was persuaded that the care arrangements, as advised to the Department by Mr Wilder during the period under consideration, did not reflect sufficient care for him to be determined to have had regular care of the child.

39.Given this, the tribunal is satisfied that Mrs Southgate had 100% care of the child from 1 August 2017. As such, the tribunal is satisfied that from 1 August 2017 there was a change in the care which constitutes a change to the pattern of care such that Mr Wilder had 0% care of the child and Ms Southgate had 100% care of the child.

40.Section 50 of the Act requires a new determination of a percentage of care to be made where an existing determination has been revoked and the tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period.

41.Subsection 54F(1) of the Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child or children.

42.The tribunal is satisfied that a care determination has previously been made under section 50 of the Act such that Mr Wilder had 14% care of the child and Ms Southgate had 86% care of the child from 21 July 2010.  The tribunal has now concluded that from 1 August 2017 Mr Wilder’s and Ms Southgate’s care percentages were not the same as their previously determined care percentages and that Ms Southgate had 100% care of the child from this date. Therefore section 54F(1)(a) of the Act is satisfied and the existing determination must be revoked.

43.Section 50 of the Act provides that if the tribunal revokes a determination and is satisfied that a party has had, or is likely to have, a pattern of care of the child, the tribunal must determine the percentage of care during the care period. “Actual care” may be worked out based on the number of nights the child was or will be in the care of the person (subsection 54A(1)).

44.The tribunal is required to consider what the actual care of the child was, or is likely to be, during the care period. The care period is such a period as the Child Support Registrar considers is appropriate, having regard to all of the circumstances (section 50 of the Act). In this case the tribunal considers that an appropriate care period is the 12-month period from 1 August 2017, which is the date that the tribunal has accepted that a change to care arrangements occurred.

45.The tribunal has determined that Ms Southgate had 100% care of the child from 1 August 2017.  The tribunal is satisfied that the first notification of a change in care occurred when Ms Southgate contacted the Department in August 2017 and said that the care had changed. When asked why she had not contacted the Department again when the change was not put in place, Ms Southgate told the tribunal that she didn’t want to increase conflict with Mr Wilder at the time and was happy to leave the child support arrangements as they were until she received a debt notice in 2019. She confirmed that she contacted the Department again on 17 January 2019 to query how she could have a child support debt when she had 100% care of the child and this is when she notified again of the change in care that had occurred. The Department’s documents show that at this time she first said that a change in care occurred on 26 June 2016 and later confirmed that the change actually occurred on 1  August 2017.

46.In this case the tribunal determines that, as Ms Southgate took no action between August 2017 (when she first contacted the Department) and 17 January 2019, the notification of the change in care occurred on 17 January 2019 which was not within 28 days of the change in care. The tribunal also determines that there were no special circumstances which prevented Ms Southgate notifying or following up the change in care with the Department earlier than this. As such, the revocation of the existing determination will apply from 1 August 2017 for Mr Wilder and 17 January 2019 for Ms Southgate.

47.The tribunal’s decision is consistent with the Department’s decision. Therefore the Department’s decision is affirmed.

DECISION

The tribunal affirms the decision under review.