YXVZ and Child Support Registrar (Child support second review)

[2022] AATA 2387

YXVZ and Child Support Registrar (Child support second review) [2022] AATA 2387 (25 July 2022)

Division:General Division 

File Number(s):      2020/0071

Re:YXVZ

APPLICANT

AndChild Support Registrar

RESPONDENT

And FQNP

OTHER PARTY

DECISION

Tribunal:Senior Member O'Donovan

Date:25 July 2022

Place:Canberra

The Tribunal sets aside the decision under review and makes a decision in substitution that from 23 May 2018 to 23 November 2018 the care percentages for the applicant’s daughter R are 8% for the Applicant and 92% for the Other Party.

……………[sgd]……………….
Senior Member O'Donovan

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
SOCIAL SECURITY – Family Tax Benefit  percentage of care - whether living arrangements changed – where Centrelink attempted to contact Applicant – whether care percentage should be revoked – where conflicting evidence – where Applicant’s evidence unreliable – decision set aside 

Legislation

Child Support (Registration and Collection) Act 1988

Child Support (Assessment Act) 1989, s 49, s 50, s 54F, s 54G, s 54H

Cases
Polec and Staker (2011) 253 FLR 339
P v Child Support Registrar (2013) 62 AAR 17
P v Child Support Registrar [2014] FCAFC 98

REASONS FOR DECISION

Senior Member O'Donovan

25 July 2022

INTRODUCTION

1. The Applicant seeks review of a decision made by a member of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT) dated 12 November 2019. I will refer to that decision as the AAT first review decision. The Tribunal’s decision set aside an earlier decision of an objections officer of Services Australia (the Agency)[1] which altered an earlier decision made by a delegate on 29 June 2018.

[1] Exhibit 6, pages 4-9.

BACKGROUND

1. The member’s decision c­­­oncerned what is known in the Child Support jurisdiction as a ‘percentage of care’ determination. The phrase ‘percentage of care’ in broad terms refers to the proportion of care given to children by each parent in a couple which has separated. The percentage of care assessment feeds into child support calculations and other benefits.

2. The delegate who revised the percentage of care arrangements on 29 June 2018 determined that the applicant’s former partner (the ‘other party’ in these proceedings) had 100% care of his daughter R from 23 May 2018.[2] This decision was reached after the other party, reported to Centrelink that R had moved in with him. Prior to that report the percentage of care determination was 73% for R’s mother and 27% for her father.

   [2] Exhibit 6, page 33.

3. Despite numerous attempts by Centrelink to contact R’s mother (the applicant in these proceedings) regarding the reported change of care, no contact was made and in the absence of comment from the applicant, a decision was made to change the percentage of care to the amount reported by R’s father.

4. The following year, on 13 May 2019, R’s mother sought review of that decision. The basis for her objection was that living arrangements did not change in May 2018 and R continued to live with her from May 2018 until October 2018, rather than with her father.[3] An objection officer determined on 29 July 2019 that the change in assessment should not be accepted.

   [3] Respondent’s Statement of Facts Issues and Contentions, P 13.

5. The AAT first review conducted a hearing with evidence given by each of R’s parents. The AAT assessed that from 23 May 2018 R’s mother had 30% care of R and her father had 70% care.

6. The Child Support (Registration and Collection) Act 1988 provides for a further review of AAT first review decisions in the General Division of the AAT.[4] R’s mother applied to the AAT for this further review.

   [4] Section 96A.

7. The review undertaken is standard merits review. I stand in the shoes of the decision maker who made the original decision and remake the decision based on the material before me.

8. There are two matters which I must decide. First, whether I should revoke the care percentage, that being the care percentage that was in place prior to 23 May 2018. There are statutory limits on my power to do so.

10.If I am satisfied that I can and should revoke the care percentage as it stood at or 23 May 2018, then I must determine a new care percentage for a period.

LEGISLATION

11.Where a percentage of care determination has been made under section 49 or 50 of the Child Support (Assessment Act) 1989 (‘Assessment Act’) in respect of a particular care period, a new percentage of care determination cannot be made unless the existing percentage determination is revoked under Subdivision C of Division 4 of Part 5 of the Assessment Act.[5]

[5] Child Support (Assessment) Act 1989.

12.Subdivision C of Division 4 of Part 5 provides for the circumstances where the existing care determination must be revoked and where the existing care determination may be revoked. The following sections are of relevance:

a. Section 54F of the Assessment Act provides that the existing care determination must be revoked where there is a change to the cost percentage - that is, the percentage of a child’s costs the parent meets directly through care.[6]

[6] Ibid, s 54F.

b. Section 54G of the Assessment Act provides that the existing care determination must be revoked where, under the new care percentage determination, one of the parents who was previously assessed to have at least regular care of the child is now determined to have less than regular care of the child despite the child being made available by the other parent. In this context, regular care is defined to be at least 14% of the care of the child.[7]

[7] Ibid, s 54G.

c. Section 54H of the Assessment Act provides that the existing care determination may be revoked if the Registrar is notified, or otherwise becomes aware, that the existing percentage of care determination does not reflect the care that is actually taking place; if the Registrar were to determine a new percentage of care under section 49 or section 50, the other percentage would not be the same as the person’s existing percentage of care; and sections 54F and 54G of the Assessment Act do not apply.[8]

[8] Ibid, s 54H.

13.If the Tribunal is not satisfied that the above sections apply, the existing care determination cannot be revoked and will continue to apply. If the Tribunal is satisfied that the existing care determination should be revoked, a new care determination will need to be made in accordance with section 49 or section 50 of the Assessment Act.  A new care determination requires the Tribunal to determine the respective percentages of care that each parent had of the child. The Tribunal must determine a care percentage ‘that corresponds with the actual care of the child that the Tribunal is satisfied that the responsible person has had, or is likely to have, during the care period’: subsections 49(3) and 50(3) of the Assessment Act.[9]

[9] Ibid, s 49(3), s 50(3).

14.For the reasons set out below, I am satisfied that section 54F of the Assessment Act applies and the existing care determination must be revoked. There was a change to the cost percentage, that is, the percentage of the child’s costs that R’s father met directly through care on or about 23 May 2018. Prior to 23 May 2018 R’s father’s cost percentage was 24%. After 23 May 2018, for reasons which are explained further below, his cost percentage was 100%. Accordingly, the existing care percentage must be revoked and a new percentage of care determination made. I am satisfied that after 23 May 2018 the applicant’s care percentage should be 8%

EVIDENCE

15.The evidence before me consists of:

(a)Exhibit 1 – Email from the applicant dated 19 June 2022 with various screenshots totalling 8 pages

(b)Exhibit 2 – Email from the other party dated 15 May 2020 sent to the Canberra Registry

(c)Exhibit 3 – Statement from the other party dated 18 September 2020

(d)Exhibit 4 – Statement of John Woodhouse dated 20 September 2020

(e)Exhibit 5 – Statement of the other party’s brother dated 20 September 2020

(f)Exhibit 6 – T documents (pages 1 to 302)

(g)Exhibit 7 – Supplementary T Documents (ST 1 to ST 2)

16.In addition to the documentary evidence I also had the benefit of oral evidence given by:

(a)YXVZ (R’s mother);

(b)the applicant’s daughter R.

17.I also had the benefit of summonsed document’s from R’s College which set out her absences from school in 2018 and provided some commentary on those absences.

18.When the application was first filed in the General Division of the AAT, the other party was an active participant in proceedings. He filed a number of statements in support of his claim that the care of R changed significantly in May 2018. However, at some point he ceased any active participation in the proceedings and did not attend the hearing of the matter. The applicant through her representative (her now husband) invited me to draw the inference that the other party did not attend because he had told lies in his statements. I consider that unlikely. The other party had given evidence in the earlier proceedings conducted by the AAT and his version of events was to a large degree accepted by the Tribunal. Given how long and rancorous these proceedings have been there are alternative explanations available which would account for the applicant ceasing to engage.

19.The result was a somewhat unusual hearing of the matter. The respondent played effectively a ‘Hardiman’ type role where the Registrar submitted to the Tribunal’s jurisdiction and provided assistance but did not urge the Tribunal to draw any particular factual conclusions. I took into evidence a number of statements which were unsworn and no live witnesses were called to adopt them. These statements set out the other party’s perspective on the facts.[10] These were in similar terms to evidence which had been given in the course of the AAT’s first review in which the other party actively participated.[11]

[10] Exhibit 3, 4, 5.

[11] Exhibit 6, pages 4-9.

20.These statements and other material in the T-Documents provided a basis for testing the evidence that was given at the hearing despite the absence of the other party. Set out below are my findings of fact. Many of the matters recorded were not in dispute. Where I have resolved a conflict in the evidence I have referenced the evidence which I preferred and explained my reasons for that preference.

FACTUAL FINDINGS

21.The applicant and the other party were in a relationship for an extended period. They had two children together. After the relationship broke down the applicant was the primary carer for both children. Prior to the other party reporting a change in care arrangements in June 2018, the applicant had a care percentage for their daughter R of 73% and 100% for their other child.[12]

[12] Exhibit 6, page 263.

22.It is not in dispute that in late 2017 R was mostly living at the applicant’s house and spending a relatively small percentage of her time at the other party’s house.

23.However, over the course of 2017 the applicant met her now husband on the internet. He was living in Queensland when they met. He came and visited the family in Canberra and stayed with them for a period of a few days in November 2017.

24.Soon after that visit, in December 2017, he moved from Queensland to Canberra and moved in with the applicant and her children.

25.It is not in dispute that this caused some friction in the household. The applicant described it in the following terms in an email to the Department of Human Services dated 20 May 2019 (T11 p 64):

In December 2018, my partner, (now husband) [MJ], moved into the family home with my children and I. There were some teething problems. My daughter A was fully accepting of the new family dynamics… [R’s] mental health was beginning to suffer. She was not handling things well at all. From around April 2018 [R] was beginning to spend more time between places, the family home, her father’s house and her (then) boyfriend’s house…[13]

[13] Exhibit 6, page 64.

26.It is clear from context that the applicant meant December 2017.[14]

[14] Ibid.

27.Notwithstanding the agreement that R was unhappy with MJ moving into the family home, what is in dispute is whether this led to R spending the majority of her time at her father’s house.

28.In early June 2018 the other party contacted the Child Support Registrar. He advised that the percentage of care in relation to R had changed. He said that the new care arrangements were 365 nights of care for him and zero for the applicant.[15]

[15] Exhibit 3, annexure B dated 29 June 2018.

29.He advised that R had come to live with him starting on 23 May 2018. He advised that ‘it is likely YXVZ [the applicant] will not disagree with this information.’ He was advised by Centrelink that if there was disagreement to the facts of the care change, evidence may be requested.

30.The Agency attempted to contact the applicant on a number of occasions. It rang her mobile (twice), left a message on her answering machine using her landline and sent out a letter.[16] The applicant claims she did not receive any advice about the percentage of care change at this time which is a question I do not need to resolve. What is not in dispute is that there is no contemporaneous account from the applicant about care arrangements in the relevant period.

[16] Exhibit 6, pages 263-293.

31.When the applicant was advised of a family tax benefit debt in April 2019 which arose because of the change in care percentage accepted by Centrelink the previous year, she disputed for the first time the other party’s claim that primary care passed to him in May 2018. The applicant contended that primary care did not change until late October 2018.[17] The applicant claimed that throughout the relevant period ‘I was still [R’s] main carer, she still lived at my home…I was still the emergency contact for her school, was still taking her to doctors appointments, picking her up from school and so on’.[18]

[17] There is no dispute that by December 2018 the applicant accepted that R was 100% in the other party’s care as Centrelink checked care records with the applicant which were accurately reflected  – T22 p 269

[18] T11 p 65

32.The question which arises is when the care arrangements for R changed substantially. The other party claims it was no later than May 2018, the applicant claims it was not until late October 2018.

33.The other party has provided evidence about the care arrangements a number of times. The most detailed account is contained in Exhibit 2 a document which he prepared for the purposes of these proceedings but which he never formally adopted. Using text messages submitted by the applicant as reference points, the other party constructed a detailed analysis of where R was spending her time as between his house and the applicant’s.

34.Importantly the other party has provided corroborating evidence which supports his analysis. In particular, in the month of August 2018 there are emails between the other party and R’s College which corroborate his claim that R was living with him for the majority of the time. These include:

(a)  An email dated 1 August 2018 which states ‘My daughter [R] is sick today and will not be attending college. If she is still sick tomorrow I will advise the college’;

(b)  An email dated 13 August 2018 which states ‘I am [the other party] and my daughter [R] is sick and will not attend college today. I will inform --- College if she is still sick tomorrow.’

(c)   An email dated 14 August 2018 which states: ‘I am… [R’s] father. [R] did not attend school today, she is worse today than she was yesterday. I have provided you with a Doctors certificate’.

(d)  The Doctor’s certificate provided which states ‘This is to certify that [R] attended a medical consultation today, the 14^th of August 2018 with her father’;

(e)  An email dated 15 August 2018 which states: ‘[R] my daughter is getting worse with her illness she to sick to leave the house today [sic]. I will attempt to take [R] to the doctors tomorrow if she is able to.’

35.In my view when Exhibit 2 is read in a context where:

a.It is accepted that the applicant’s new partner moving in created friction with R in early 2018 and care arrangements began to change as a consequence;

b.The other party reported to Centrelink that care had changed significantly in circumstances where he knew that Centrelink would take steps to check his version with the applicant;

c.The applicant has provided detailed evidence of where R was spending her time in 2018 in Exhibit 2; and

d.There is reliable third party corroboration of parts of Exhibit 2;

I am willing  to accept that Exhibit 2 accurately lays out the care arrangements which were in place in the period from late May 2018. There are however two bases on which Exhibit 2 may be regarded as less than reliable. The first is that the other party did not attend the hearing and give sworn evidence to verify it. Second, the applicant and R gave evidence which directly contradicted what was set out in Exhibit 2.

Failure of the other party to attend

36.Given the other party’s failure to attend the Tribunal and adopt the statements in Exhibit 2, I would normally treat it with scepticism. However, given the high levels of corroboration in the emails and the fact that the emails match perfectly with the records of absences provided by the College under summons, I am not prepared to dismiss the document for that reason. Further, the other party did attend the hearing for the first review and his version of events was largely accepted.

37.It is clear from the material filed that this has been a long and rancorous contest between the applicant and the other party. Frustration and exhaustion with the litigation process could well explain the applicant’s decision to disengage from the second tier of review.  In these circumstances Exhibit 2 can be regarded as more reliable than would normally be the case in relation to unsworn evidence in other circumstances.

38.I note in passing that the other party sought to corroborate his version of events with statements from friends and relatives.[19] On their face the documents look to have been prepared with significant involvement by the other party. Given that the authors of the statements failed to attend and give sworn evidence in support of the statements, I am not prepared to give them any weight.

[19] Exhibit 4, exhibit 5.

Evidence of the applicant and R which contradicts Exhibit 2

39.The applicant contests the other party’s description of care arrangements between May 2018 and October 2018. The applicant says that care arrangements did not change significantly until late October 2018.

40.Both the applicant and her daughter R gave sworn evidence about the care arrangements in 2018. Neither was a satisfactory witness. It appeared that there had been discussion between them about the content of the evidence that they would give. The evidence each gave was extremely consistent with the other’s, but not consistent with other known facts. For example, when asked about when R stayed at her father’s house in the relevant period, each suggested that it was no more than every second weekend. It is clear from the material I have discussed above that this was not the case. It was accepted by the applicant when she first made a statement about the care arrangements, that she accepted that they changed in response to the applicant re-partnering. For her to now claim that care arrangements were basically the same until October 2018 is implausible – yet both R and the applicant sought to give that evidence. Both also were very clear that the only significant change in care arrangements happened in October 2018. Neither witness however could describe the catalyst for the change. When the August emails with the school were raised which show that R was spending more time with her father than just weekends, both R and the applicant sought to explain the event in the same way.

41.They both gave evidence that the only reason that R had ended up in the care of the other party in August 2018 was because:

(a)  She became ill at school;

(b)  the school was unable to contact the applicant and could contact the other party;

(c)   the other party collected the applicant and took her to his house.

42.Both R and the applicant insisted that this was unusual and R returned to her mother’s house after she recovered.

43.I am satisfied that, at the very least, R and the applicant have significantly misremembered the timing of relevant events and are mistaken in their belief that Rs father’s care involvement with R was restricted to a single incident where he picked her up from school when she was ill.

44.It is clear from the absentee records from the College that the applicant became ill at school on 25 July 2018. The record states ‘ill at school, collected by dad at 9.25’ The record shows R was unwell for the following three days with absences on those days being notified in an email from her father. I am satisfied that in seeking to explain the other party’s involvement in the August absences, the applicant and R have drawn on events from July as a basis for suggesting that what happened in August did not reflect a change in care arrangements. The evidence is unreliable.

45.In contrast to the claims of both R and the applicant, it is clear from the College records that R’s absences in August were whole day absences on two separate occasions, both notified by R’s father.  It is clear that R’s father took her to the doctor. This is persuasive evidence that R was living with her father at that time just as he claims in Exhibit 2 and other statements. Given the clear errors in R’s and the applicant’s recollections I am not prepared to put any weight on them.

46.I am satisfied that the R was living with her father in July and that was why he collected her from school when she fell ill. I reject the applicant’s and R’s evidence that these events occurred in August, and all of the other evidence which they gave concerning the circumstances surrounding R being collected from school.

47.I am satisfied that neither R nor the applicant have provided any reliable evidence of what the arrangements were at the time. Whether this is the result of deliberate dishonesty or actual recollections becoming confused as a result of the relentless conflict and delay that has accompanied this matter is uncertain. But whatever the reason, I place no weight on their oral evidence and significant weight on the outline of care arrangements which the other party submitted which became Exhibit 2.

48.The applicant’s statements in Exhibit 2 have the virtue of being corroborated by primary documents and in particular the annexed emails which match the College records[20].

[20] Which I note were only produced after the other party ceased to engage with the proceedings thus ruling out any possibility that the emails were manufactured in some way to match the third party corroboration

49.In these circumstances I am confident that R was living primarily with her father well before October 2018. The most coherent account of when care arrangements changed is that provided by the other party to the Agency in June 2018 which is that the arrangement changed in May because R was unhappy living with her mother after her new boyfriend moved in.

50.I accept that from that point, R moved regularly between houses, but the majority of care was being provided by the other party.

51.It is very unusual to reject the sworn evidence of live witnesses and prefer the evidence of an unsworn statement of a person who has not attended the hearing. However, the Tribunal is not bound by the rules of evidence, and in circumstances where the other party did give evidence in the AAT in the first review and this evidence was substantially accepted, I am more confident accepting his subsequent unsworn evidence. I would not have accepted the statement if it was not corroborated by documents, the authenticity of which are beyond doubt.

ANALYSIS

Percentage of care

52.The Tribunal must determine the percentage of care that the Applicant and the other party had of the child during the relevant care period, and this must correspond to actual care.

53.Section 54A provides guidance on working out the actual care and extent of care of a child:

54A Working out actual care, and extent of care, of a child

(1) The actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that the Registrar is satisfied that the child was, or is likely to be, in the care of the person during the care period.

(2) The extent of care of a child that a person should have had, or is to have, under a care arrangement during a care period may be worked out based on the number of nights that the child should have been, or is to be, in the care of the person during the care period under the care arrangement.

(3) For the purposes of this section, a child cannot be in the care of more than one person at the same time.

(4) This section does not limit section 50, 51, 52 or 54.

54.The Registrar contends that an approach based on section 54A is open to the Tribunal in the present case.[21] However, for completeness, the Registrar notes that the courts have held that the concept of ‘care’ is broader than simply the provision of accommodation on any given night, and that percentage of care does not necessarily need to be determined by reference to a time based calculation: see Polec and Staker [2011] FMCAfam 959, at [56]; P v Child Support Registrar (2013) 62 AAR 17, at [107]; and P v Child Support Registrar [2014] FCAFC 98, at [47].

[21] Respondent’s Statement of Facts Issues and Contentions.

55.In the present case the other party has gone to significant trouble to detail the nights where he is confident that R was in his care and the nights where she was not. This is set out in Exhibit 2. Having regard to the detailed analysis in that document I am satisfied that between 23 May 2018 and 23 November 2018 R spent 170 nights with her father out of 184 nights in the period. This gives a percentage of care of 92% for the other party and 8% for the applicant.

56.In light of this finding I am obliged to revoke the care percentage determination in force as at 22 May 2018. I am satisfied that the applicant’s costs percentage would change if I were to determine another percentage of care and the other requirements of section 54F are met.

57.I must also make a determination of percentage in accordance with section 49 or section 50. I am satisfied that there was a pattern of care for R. It was not one characterised by precise regularity. However, for the most part R stayed with her father but would return to her mother’s home to see her sister a couple of days a month. The appropriate percentage of care is 8% for the applicant and 92% for the other party.

58.I therefore set aside the decision under review and make a decision in substitution that from 23 May 2018 to 23 November 2018 the care percentages for R are 8% for the applicant and 92% for the other party.

I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the direction herein of Senior Member Damien O’Donovan.

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

Associate

Dated: 25 July 2022

Date of hearing:

27 June 2022

Non-Legal representative for Applicant:

Mr Johnson

Solicitor for Respondent:

Self-represented, Other Party:

Ms Laura Hinwood, Sparke Helmore Lawyers

FQNP, non-attendance