YWZC and Child Support Registrar (Child support second review)

[2022] AATA 14

YWZC and Child Support Registrar (Child support second review) [2022] AATA 14 (7 January 2022)

Division:GENERAL DIVISION

File Number:          2021/5237

Re:YWZC  

APPLICANT

AndChild Support Registrar

RESPONDENT

AndTPVV

OTHER PARTY

DECISION

Tribunal:R Cameron, Senior Member

Date:7 January 2022

Place:Melbourne

The Tribunal affirms the decision under review.

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

R Cameron, Senior Member

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 – percentage of care – whether existing care determination should be revoked – deficiencies with documentary evidence – cannot accept mother’s contentions - existing care percentages not revoked – decision affirmed

Legislation

Child Support (Assessment) Act 1989 (Cth)

REASONS FOR DECISION

R Cameron, Senior Member

7 January 2022

INTRODUCTION

1. This is an unfortunate case which highlights the specific challenges faced by the Tribunal, and the parties, when self-represented litigants are before it. The case also highlights the difficulties confronting the Tribunal when it is required to make credit findings after a hearing held by telephone.

2. The applicant,[1] who is the mother of two children, seeks a review of a decision of the Social Services & Child Support Division of this Tribunal (“AAT1”) made on 3 August 2021 (“the reviewable decision”). The reviewable decision affirmed a decision made by an authorised review officer of the respondent refusing to change the care percentages with respect to each of the children as follows:

   (a)The daughter M, 76%/24% in favour of the mother from 22 February 2020; and

   (b)The daughter D, 84%/16% in favour of the father from 22 February 2020.[2]

   [1] The applicant will hereinafter be referred to as the “mother” and the other party the “father”.

   [2] For the purpose of these proceedings, the children’s names will remain anonymised. Instead, to the older child will be referred to as ‘M’ and the younger child as ‘D’

3. These percentages were fixed by an objections officer on 28 October 2020, who partially allowed an objection to a decision made on 28 April 2020 not to change the existing percentage of care (“the existing care determination”). The mother advised the Registrar of a change in care for the children on 13 March 2020. In that advice to the respondent, she contended that the percentages for the child M had changed to 72%/28% in favour of the mother and the care percentages for D had changed to 72%/28% in favour of the father.

4. The mother notified the respondent on 27 October 2020 that she had 66% care of M from 1 June 2020 and 38% care of D from 3 June 2020.

5. An authorised officer on 17 February 2021 refused to change the care percentages in response to the notification made by the mother on 27 October 2020. The mother objected to this decision and it came before an objections officer. On 15 April 2021, the objections officer disallowed the mother’s objection. It was from this decision that she sought review in AAT1.

   ISSUES FOR DETERMINATION BY THE TRIBUNAL

6. The respondent has helpfully articulated questions for determination by the Tribunal and they are as follows:

   (a)Whether the existing care percentage determination must be revoked pursuant to s 54F, 54G or 54H of the Child Support (Assessment) Act 1989 (“Assessment Act”)?

   (b)If so, what percentage of care should be determined for the mother and the father under s 49 and/or s 50 of the Assessment Act?

   CONSIDERATION

7. The father and the mother were self-represented. They gave evidence on affirmation.

8. The mother’s case is extremely difficult to follow. No calculations were provided explaining how the percentages which she contended applied.

9. The father did not make any submissions during the hearing as to what percentages should apply. However, in the documentary evidence before the Tribunal there was a letter from the father dated 29 December 2020, in which he contended that his care percentage for D was 100% and for M 39%.

10. However, there was an array of documentary evidence that the mother relied upon in support of her contention that the care percentages should be changed. They will be examined individually.

11. There is a letter, dated 17 December 2020, from the Wellbeing Officer of the secondary school D attends.[3] This letter states that D has informed the writer that she is living with her mother part of the time and part of the time with her father. Apart from the fact that it is hearsay, the letter does not enable the Tribunal to form any conclusion as to what percentage of time D is living with either parent. The Tribunal can place no reliance upon it.

    [3] Document T56 of the T documents.

12. Another letter, dated 14 July 2020, was in evidence from the Assistant Principal of the secondary school that both daughters attend.[4] It indicates that both daughters resided some distance from the school and that their mother may need to transport them to and from school. Once again, it is demonstrable hearsay; and it does not enable the Tribunal to determine what proportion of the time each of the daughters are spending with their father or their mother. It should be borne in mind that, from the documentary evidence and the oral evidence given to the Tribunal, both parents acknowledge that their daughters were spending time with each of them.

    [4] Document T71 of the T documents.

13. The next piece of evidence relied upon by the mother is a receipt from “Maze’N Things” dated 11 January 2021.[5] Unfortunately, this document proves nothing helpful. It certainly does not prove what percentage of time each daughter spent with their father and mother.

    [5] Document T62 of the T documents.

14. The mother then furnished a series of text messages, apparently passing between her and D on several occasions, dated between approximately August and December 2020.[6] Regrettably, they are not in chronological order. Once again, they are hearsay. More importantly they do not really assist the mother’s case and enable the Tribunal to determine how many nights D was staying with her mother over the relevant period. They are inconclusive.

    [6] Document T65 of the T documents.

15. The mother relies upon two statements, from AA and AE, dated 2 February 2021.[7] They are of little value as they do not identify the number of days concerned and in the case of the second statement only relate to a stay at Phillip Island over a few days. They are also hearsay.

    [7] Documents T232-233 of the T documents.

16. There is a letter signed by the Principal of a high school D attends dated 2 February 2021.[8] The letter asserts that D resides with her mother. It does not specify what proportion of the time she does so. It does not, as has been noted earlier, take into account the fact that D does spend time with her father, as has been acknowledged by both parties in their evidence before the Tribunal. In addition to being hearsay, the Tribunal can place no weight upon it.

    [8] Document T67 of the T documents.

17. There are a limited number of text messages passing between the mother and the father concerning D and M.[9] They have limited probative value and do not establish what percentage of the time each of the children was with each parent. No weight can be placed upon them.

    [9] Document T71 of the T documents.

18. There is a statement of KT dated 10 March 2021.[10] In that statement she declares that both children were staying most of the time with the mother since June of the previous year. Unfortunately, it does not give any details of percentage of time that each of the children spent with their mother. She does not condescend to any detail as to how she knows that they were staying most of the time with their mother. It is an untested declaration that is made outside the Tribunal. Limited weight therefore can be placed upon it.

    [10] Document T71 of the T documents.

19. There is a statement by the mother of the applicant. She is in Iraq. She maintains contact with the applicant and children through an internet application called WhatsApp. She states that children are with their mother most of the time; especially during October and November 2020. The Tribunal places no weight upon this statement. It is untested and also an out-of-Tribunal statement. It does not assist in calculating the percentage of time that each of the children were with their mother and their father.

20. Another statement relied upon is from the applicant’s sister.[11] She is also in Iraq. She has also maintained contact with her sister through WhatsApp video calls. She states that both daughters were present with her sister especially during October and November 2020. The Tribunal places little weight on this statement. It is also an untested and an out-of-Tribunal statement. It does not assist in calculating the percentage of time that each of the children are with their mother and father. At best, it shows that the children may have been present when she made the video calls.

    [11] Document T71 of the T documents.

21. There is also a letter from NK[12] in which it is declared that certain nights D was present with her mother. Apart from the fact that it is untested and an out of Tribunal statement, the Tribunal does not know how this person had any direct personal knowledge of how many nights D spent with her mother at her home. The Tribunal can place no weight upon it.

    [12] Page 8 of the T documents.

22. An unsigned letter from MV[13] was also contained in the T documents. Once again it is untested and an out-of-Tribunal statement. There is no evidence before the Tribunal as to how this person had any direct personal knowledge of how many nights D stayed with her mother. The Tribunal can place no weight upon it.

    [13] Page 9 of the T documents.

23. There are two statutory declarations from M made on 11 July 2021 as to the number of nights that she and her sister spent at her mother’s home.[14] She did not give evidence before the Tribunal. The father gave evidence on affirmation that he disagreed with their contents. The Tribunal accepts the father’s evidence on this question.

    [14] Documents ST1 and ST2 of the Supplementary T documents.

24. The mother and the father relied upon Care Arrangement Calendars for the relevant years for each child. Both of them gave evidence on affirmation that they completed, or perhaps more accurately, made the entries in the calendar each day the child was present with them staying overnight. Each one gave evidence to the effect that the entries in the Care Arrangement Calendar completed by them were accurate. This is problematic. An examination of each of the Care Arrangement Calendars reveals a significant number of occasions where a child was recorded in each calendar as staying with both parents on the same night. This simply could have not occurred.

25. The father specifically said that he did not agree with the entries contained in the Care Arrangement Calendars prepared by the mother. The mother did not go so far as to say that the entries contained in the Care Arrangement Calendars prepared by the father were inaccurate.

26. An example of the conflict in the entries between the two Care Arrangement Calendars is highlighted by the comparison between those for the year 2020 for D. Between August and December 2020, the Tribunal counted 58 days where D was said to have stayed with both her mother and her father. In the year 2020 for M, the Tribunal counted 17 days where she was said to have stayed with both her mother and her father.[15] This clearly could not have occurred. Counsel appearing for the respondent contended that the Care Arrangement Calendars were simply irreconcilable. The Tribunal agrees with this contention. Other than to highlight the inaccuracies in these documents, there was no evidence of either party that really gave an insight into how this could have occurred. Overall, the Tribunal observes that the evidence of both the parties concerning this matter was unsatisfactory.

    [15] The respondent in its Objection Decision of 15 April 2021 at page 307 of the T documents made the observation that for D the parents claim to have had the same night's care on 66 occasions in the period from 1 August 2020 until 31 January 2021. For M it was observed that the parents claim to have had the same night's care on 16 occasions in the period from 1 August 2020 until 31 January 2021.

27. There were several calendars in evidence for the year 2021 completed by the mother that contained inconsistent entries.[16] Indeed, for each child there were three different versions of the 2021 Care Arrangement Calendar. Each version of such Care Arrangement Calendar contained different entries for dates on which each respective child had stayed with the mother. On their face they are unreliable. No explanation for these inconsistencies was forthcoming from the mother in her evidence. Once again, they were irreconcilable.

    [16] Care Arrangement Calendars for the year 2021 for the daughter M by way of example, were contained at pages 218 and 239 of the T documents and page 15 of the ST documents. Similar Care Arrangement Calendars for the year 2021 for the daughter D at page 220 and 237 of the T documents and page 16 of the ST documents. There were similar inconsistencies with that documentation.

28. By reason of the inconsistencies with the Care Arrangement Calendars that have been recounted, the Tribunal is persuaded to accept the evidence of the father that he does not agree with the contents of those calendars.

29. Given this finding, and the deficiencies with the documentary evidence relied on by the mother that has been identified earlier in these reasons, the Tribunal cannot accept the mother’s contentions as to applicable percentages of care and will not do so.

30. However, on the evidence before it, which is as noted, unsatisfactory, the Tribunal is unable to find different percentages of care. As a result, the existing percentages of care will not be revoked.

    DECISION

31. Therefore, the reviewable decision is affirmed.

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

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

Associate

Dated: 7 January 2022

Dates of hearing:

10 December 2021

Applicant:

Advocate for the Respondent:

Self-Represented

S Cummings

Solicitor for the Respondent:

Other party:

Sparke Helmore

Self-Represented