XWPX and Child Support Registrar (Child support second review)

[2020] AATA 546

XWPX and Child Support Registrar (Child support second review) [2020] AATA 546 (16 March 2020)

Division:GENERAL DIVISION

File Number(s):      2018/6244

Re:XWPX

APPLICANT

AndChild Support Registrar

RESPONDENT

AndVMPW

OTHER PARTY

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:16 March 2020

Place:Sydney

The decision of the Social Services and Child Support Division dated 2 October 2018 is affirmed.

..............................[sgd].........................................

The Hon. John Pascoe AC CVO, Deputy President

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.

CATCHWORDS

CHILD SUPPORT – review of decision of Social Services and Child Support Division –  percentage of care – where father claimed the child lived entirely with him for the relevant period – where father claimed special circumstances for not lodging an objection to the care percentage determination – decision affirmed

LEGISLATION

Child Support (Assessment) Act 1989 (Cth) – ss 49, 50

Child Support (Registration and Collection) Act 1988 (Cth) – s 87AA

CASES

Child Support Registrar v MQMV & Ors [2019] FCA 1171

SECONDARY MATERIALS

Child Support Policy Guide

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

16 March 2020

Background

1. The Applicant and the Other Party are the parents of their child aged 15, who is the subject of this Application. They are also the parents of another older son, ‘R’.

2. The matter before the Tribunal has a long history as follows.

3. An administrative assessment of child support commenced on 25 November 2009, based on the Other Party having 100% care of the child.

4. On 11 April 2017, the Applicant notified the Registrar that she had care of 90% from 11 March 2017.

5. On 29 April 2017, the existing percentage of care was revoked and a new percentage of care determination was made such that care was 90% to the Applicant and 10% to the Other Party with effect from 11 March 2017.

6. On 16 November 2017, the Other Party notified the Registrar that actual care was 0% to the parents as the child had been residing with his older brother from 15 September 2017. The Applicant disputed this and claimed the child was still living under her roof.

7. On 10 January 2018, the Other Party notified the Registrar that he had 100% care of the child from 8 December 2017.

8. On 7 February 2018, the Registrar made a decision not to change the percentage of care and rejected the Other Party’s claim that the parents each had 0% care of the child from 15 September 2017.

9. In respect of the Other Party’s subsequent claim that he had 100% care of the child from 8 December 2017, the Applicant disputed this and maintained that the child did not leave her care until 15 February 2018.

10. On 16 March 2018, the Registrar made a decision to partially accept the Other Party’s request for a new determination of care percentage. The Registrar determined that the Other Party’s care of the child was 100% from 15 February 2018. The parties were notified of the change to the percentage of care for the child on 16 March 2018.

11. On 15 May 2018, the Other Party objected to the Registrar's care percentage determination. The Other Party maintained that the child moved into his home on 8 December 2017 and had only spent one night at the Applicant’s home since that time.

12. In support of his objection, on 29 May 2018 the Other Party provided a submission and statements from family members and neighbours to corroborate his claim that the child had been in his care since 8 December 2017. A further submission and statements were provided on 6 June 2018.

13. The Applicant was provided with copies of the Other Party’s evidence on 31 May 2018 and 15 June 2018, and was invited to provide further evidence by 25 June 2018. The Applicant provided no further evidence.

14. An objections officer made a decision on 27 June 2018, to allow the Other Party’s objection and determined that the Other Party’s care for the child was 100% from 8 December 2017. The effect of the decision was that the Other Party was treated as having 100% care from 8 December 2017, and not 15 February.

    (a)The objections officer found that there was no evidence to suggest the evidence provided by the Other Party was incorrect, particularly given the Applicant was given an opportunity to respond but had failed to do so. In the absence of any evidence to contradict the evidence provided by the Other Party, the objections officer accepted that care of the child changed on 8 December 2017.

    (b)As the objection was lodged more than 28 days from the original decision, and there were no special circumstances that prevented the Other Party from objecting earlier, the objections officer found that the date of effect was decided as 15 May 2018.

15. On 16 July 2018, the Applicant provided a submission and supporting evidence to the Registrar.

16. The Applicant applied to the Social Services and Child Support Division (‘AAT1’) for review of the objection decision.

17. On 2 October 2018, AAT1 delivered an oral decision affirming the decision under review.

18. On 29 October 2018, the Applicant applied to the Tribunal for review of the AAT1 decision. The Applicant submitted that the decision was wrong and AAT1 did not receive "all relevant information". The Applicant argued that AAT1 "unfairly rejected' her evidence and stated that she would provide evidence to demonstrate that the Other Party had "perjured himself'.

    The Issue

19. The issue before the Tribunal is the appropriate percentage of care the Applicant and the Other Party had for the child from 8 December 2017.

    The Law

20. The relevant legislation which provides for an administrative assessment of percentage of care for a child for the purposes of child support is the Child Support (Assessment) Act 1989 (Cth).

21. Percentage of care determinations may be made under sections 49 or 50 of the Act, depending on the pattern of care a parent provides.

22. Section 49 of the Act is to be applied if the Child Support Registrar (or in this case the Tribunal) is satisfied that a responsible person for the child ‘has had, or is likely to have, no pattern of care for the child’ during the relevant care period. The result is that the percentage of care must be 0%.

23. Section 50 is to be applied where the Registrar is satisfied that the responsible person for the child ‘has had, or is likely to have, a pattern of care for the child’, which may be from 1% to 100% during the relevant period.

24. Subsection 50(3) of the Act requires the percentage to be that which corresponds with the actual care of the child the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.

25. In determining the matter, the Tribunal has also had regard to the Child Support Policy Document (2.2 – 4.1.8) which provides guidance in determinations of child support.

    Evidence

    The Applicant

26. The Applicant gave evidence that from 8 December 2017 until 15 February 2018 she was the primary carer for the child. She stated that during the period in question the child spent occasional time with his father. She also gave evidence that there were periods of time where he was not with either parent, including times where no one knew where he was. The Applicant said that as it was school holidays he was often staying elsewhere, including on camping trips with friends. She was unable to recall how many nights the child spent away from her home.

27. The Applicant said that she had given the child money for train fares but had no record of any such payments.

28. The Applicant said that she had taken the child to the police station on 5 February 2018 in accordance with the requirements of a notice of caution issued by the police on 23 January 2018, a copy of which was before the Tribunal. The Applicant gave evidence that the child had appeared before the courts on a number of occasions for various offences including stealing her car.

29. She also gave evidence that the child had “trashed” her house in October 2017 and that as a result she had been required to vacate her rented premises. There had been numerous incidents at the house involving the child around that time, including fights on the street outside. The Applicant said that the child had lived with her intermittently during the period up until 15 February 2018, when she says he left following an ultimatum that she’d given him regarding his behaviour.

30. The Applicant gave evidence that all correspondence in relation to the child breaking the law, court appearances and requirements to attend the police station were sent to her home.

31. In addition to her oral evidence, the Applicant provided written statements to the Tribunal. She also provided a number of letters from family, friends and medical practitioners, all of which stated either that in their knowledge the child was living with her or that she had informed them that the child was living with her throughout the relevant period. This material was of limited evidentiary value as the majority of it relied on observations made by the Applicant to a third party. For example, the Applicant’s mother stated:

    From the constant distressed phone calls, regarding police involvement with law breaking, court appearances, and disrespectful behaviour towards her, that I had from [the Applicant] during the period of time in question, I know that [the child’s] full time address was with [the Applicant]. She had no reason to invent the incidents each time since she was truly distressed about [the child’s] actions. She was required to appear in court regarding incidents [the child] was involved in outside her house and while he lived at her house.

32. Her psychologist stated that:

    I have been [the Applicant’s] treating psychologist over the past 7 years. From referring to my notes I can confirm that [the Applicant] has discussed with me issues regarding her son, [the child], including that he was living with her full time between March 2017 and February 2018.

33. Where the letters in support did not rely on information provided to the writer by the Applicant, they related to either singular or sporadic observations, not necessarily during the relevant period. There was no one who was living in the house with the Applicant who was able to give direct evidence as to the relevant period of time.

34. The Applicant gave evidence that she provided the child with approximately $40 a week and that he always came to her house to collect the money. The Applicant produced no record of these payments. She said that the child would often come and stay the night before he was due to receive the money.

35. Under cross-examination she said that the child had no medical issues during the care period. She also said that she had had no involvement with the child’s school during the care period and that she had not been involved in any steps in relation to assisting his return to the school he was attending at that time, although she did say that he had a long record of being in trouble at school.

36. The Applicant gave no evidence as to the child’s drug use and any effort on her part to help him stop.

37. The Applicant said that the Other Party was a liar and that nothing he said could be relied on.

    The Other Party

38. The Other Party gave evidence that the child was ‘off the rails’ for a long period and was using drugs. The child had returned to live with him at the end of 2017. He gave evidence that he had gone out to look for the child when he was absent from home, for example staying in drug houses in an effort to get him off using drugs, that he had tried to involve him in new activities such as motorbike riding and to remove him from bad influences including enrolling him in a new school which the child started to attend in March 2018. He produced a number of photographs in support of this.

39. The child had not started school until March 2018 because of the difficulties the father has said he faced in enrolling him in a school that was essentially out of area so as to remove him from a “bad crowd”. The father produced an email sent to the school dated 30 January 2018 in which he requested this enrolment. He also gave evidence that he had approached other schools.

40. The Other Party gave evidence that he had taken the child to see the Applicant on her birthday in 2018. He said that was the only time the child had spent with the Applicant overnight and that he had stayed on that occasion because the Applicant was very upset.

41. The Other Party said that he bought new clothes for the child and that he supported him on a day-to-day basis. He was not aware of the child receiving any money from the Applicant.

42. He also gave evidence that the child went on camping trips occasionally and that he did spend nights away from home but that if he did not know where the child was, he spent time trying to track him down. He had also bought the child a mobile phone so that he could keep in touch with him.

43. The Other Party also produced a series of statements from third parties including his partner which said that the child was living full-time with him. Again, the letters were of limited evidentiary value and as with the Applicant none of those who wrote letters appeared at the hearing.

44. The Other Party was not aware of any medical issues or that the child had any need to attend medical professionals. Rather, his focus was on getting him off drugs and removing him from a negative environment to a more positive one.

    The elder son – ‘R’

45. The Other Party called his elder son, ‘R’, who gave evidence that his brother came home on or about 8 December 2017 and that he was there for the whole of December. He gave evidence about erecting a Christmas tree prior to Christmas, and also gave evidence that the father had given his brother a motorbike which was contingent on good behaviour.

46. R said that he had been present in the car with his brother and his father when he was dropped at the Applicant’s house on occasion and for short periods.

47. R was quite clear that the child was in the care of his father and spending most of his time at his father’s house during the relevant period.

48. R said that the father had raised both him and his brother single-handedly from the age of seven or eight.

    Consideration

49. The Child Support Policy Document (30-32) gives guidance to the Tribunal in making a decision where there is a lack of clarity as to who has the care of the child.

50. In this case it is not entirely clear as to the number of nights the child spent with the Applicant or the Other Party, and the number of nights spent away from both. However, I give greater weight to the evidence of the Other Party in this regard. There were fewer inconsistencies in his evidence and it was corroborated by witness R.

51. In relation to the Applicant’s evidence I was concerned by her statements as to the child being away a lot or most of the time because it was school holidays, without really being able to put a figure on the number of days or give evidence of any real attempt to find out where he was. Further, the evidence as to the child coming to her house (and perhaps staying the previous night) when he was to get money from her seemed to indicate his visits were sporadic in nature and related particularly to getting money from her. I was also concerned that she said she had given him an ultimatum to leave on 15 February 2018 as a result of him stealing her car. She did not appear to have taken any action after the child trashed her house causing her to be given notice to vacate the property, and there was no evidence as to what the damage entailed and whether it would have affected the child’s ability to live in the house.

52. Apart from accompanying the child to court or the police station, the Applicant could give no evidence of any attempt to change the child’s behaviour or assist him to get his life back together. At the time the child was 14 years old and clearly needing parental guidance. There was no evidence of any pattern of care.

53. I give weight to the Other Party’s evidence which is supported by the email dated 30 January 2018 in relation to his involvement in registering the child at school and the reasons for doing so. I also give weight to his evidence as to his efforts to turn the child’s life around and to get him off drugs. I note the evidence that the child had returned to school and that he had progressed to an apprenticeship which he is currently undertaking. It was not disputed that the child has continued to live with the father since 8 December 2017.

54. Accordingly, having regard to all of the evidence I am of the opinion that the Applicant had no pattern of care for the child during the relevant period and that the Other Party had 100% care of the child during the period from 8 December 2017 to present. His evidence was corroborated by witness R and the e-mails in relation to his schooling

55. The decision in regards to the percentage of care is affirmed.

    Date of Effect

56. This issue is governed by section 87AA of the Child Support (Registration and Collection) Act 1988 (Cth), which states as follow:

    (1)  If:

    (a)a person lodges, under section 80A, an objection to a care percentage decision; and

    (b)the objection is lodged more than 28 days or, if the person is a resident of a reciprocating jurisdiction, 90 days after notice of the care percentage decision was served; and

    (c)the Registrar decides (the review decision), under section 87, to allow the objection in a way that has the effect of varying the determination to which the care percentage decision relates, or substituting a new determination;

    the date of effect of the review decision is the day on which the person lodged the objection.

    (2)  If the Registrar is satisfied that there are special circumstances that prevented the person from lodging the objection within the period referred to in paragraph (1)(b), the Registrar may determine that subsection (1) applies as if:

    (a)  in a case where the person is a resident of a reciprocating jurisdiction--the reference to 90 days in that paragraph were a reference to such longer period as the Registrar determines to be appropriate; or

    (b)  otherwise--the reference to 28 days in that paragraph were a reference to such longer period as the Registrar determines to be appropriate.

57. Further guidance is provided in the Child Support Guide at p. 67 as follows:

    Objection decision to apply from an earlier date

    The care percentage objection decision may have effect from an earlier day if the Registrar is satisfied that there are special circumstances that prevented the person from lodging their objection within the required timeframe (section 87AA(2)). The Registrar must first be satisfied that special circumstances exist, and then the Registrar has discretion as to whether to extend the period in which to lodge the objection, in order for the objection decision to have effect from the earlier date.

    Special circumstances

    In considering special circumstances the Registrar will look at the particular circumstances of the applicant. The applicant must show that their particular circumstances prevented them from lodging an objection within the required timeframe. They must explain why there was a delay in lodging the objection and that the circumstances are sufficiently special for the applicant to receive the benefit of an extension to the period in which to lodge an objection, in order for the objection decision to have effect from an earlier date. Some examples of special circumstances may include:

    ·the parent was seriously ill or had an accident that stopped them from lodging an objection

    ·the parent suffered a personal trauma such as a death in the family or a natural disaster that caused damage to the parent's property

    ·the parent had communication difficulties, including isolation, illiteracy or poor English-language skills

    ·the parent reasonably relied upon inaccurate or misleading information.

    If the Registrar is satisfied that special circumstances exist, the Registrar will then consider whether it is appropriate to exercise the discretion to extend the period in which to lodge the objection (section 87AA(2)). The Registrar will consider if:

    ·the decision to extend the period in which to lodge the objection will prejudice the other parent. For example, will the extension that results in an earlier date of effect for the objection decision create a significant overpayment or significant arrears of child support?

    ·the applicant rested on their rights. For example, did the applicant make any efforts to lodge the objection earlier, communicate to DHS that the decision was being contested or raised their concerns in other ways - for example, a complaint to DHS or the Ombudsman?

    If the Registrar makes a determination under section 87AA(2) to extend the period in which to lodge the objection, then the objection is considered to have been received within the prescribed timeframe. The objection decision will then replace the original care percentage decision from the first day that original decision had effect.

1. This issue arose at the hearing as a result of the decision of the Federal Court of Australia in Child Support Registrar v MQMV & Ors [2019] FCA 1171. Previously, the CSR had claimed the Tribunal had no jurisdiction to consider whether a date earlier than 15 May 2019 could apply.

2. The Other Party lodged an objection on 15 May 2018. In the absence of special circumstances as required by section 87AA(2) of the Act, that is the date which applies.

3. The Other Party claimed special circumstances on the basis that he was severely depressed, which prevented him lodging an objection at an earlier date.

4. The Other Party was given time to provide evidence of special circumstances, particularly his health issues subsequent to the conclusion of the hearing. He ultimately provided certificates as to his being unfit for work in any capacity during the periods 22 January 2018 to 22 April 2018, 18 April 2018 to 18 June 2018 and 29 June 2018 to 29 August 2018.

5. Apart from the fact that the certificates provided do not relate to the relevant period, the fact that the Other Party was unfit for work does not constitute evidence as to special circumstances as required by section 87AA(2) and amplified by the guidelines.

6. Even if I accept that the Other Party suffered from severe depression during the period in question, it is reasonable to assume that he was receiving treatment, and that the condition would not have prevented him lodging an objection within the time. There is no evidence of any period of hospitalisation. The Applicant may have been taking anti-depressant medication during the relevant period, but even if I were to accept that this was the case, presumably the medication would be to assist him to carry on with daily tasks. There is simply no evidence that he faced any particular difficulty in lodging an objection. Accordingly, I find no special circumstances to have been established.

7. I note that neither the Applicant nor the Child Support Registrar made a response to the claim for the objection decision to apply from an early date.

   Decision

8. The decision of AAT1 is affirmed.

9. There are no special circumstances during the period 10 January 2018 to 15 May 2018 and accordingly the date of objection is 15 May 2018.

67.     I certify that the preceding 66 (sixty six) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

............................[sgd].......................................

Associate

Dated: 16 March 2020

Date of hearing:	14 February 2020
Applicant:	In person
Advocate for the Respondent:	Karwan Eskerie
Solicitors for the Respondent:	Sparke Helmore Lawyers
Other Party:	In person