Alarie and Blackert (Child support)

[2020] AATA 1387

Alarie and Blackert (Child support) [2020] AATA 1387 (14 April 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/PC017525

APPLICANT:  Mr Alarie

OTHER PARTIES:  Child Support Registrar

Ms Blackert

TRIBUNAL:Member W Budiselik

DECISION DATE:  14 April 2020

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the determination that was in place prior to 30 June 2017 is revoked on 11 April 2019 and from 12 April 2019 a new determination is to be issued which attributes the mother and the father each with 0% of their child’s care.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – child no longer in care of either parent – existing percentage of care determinations revoked and new determinations made – decision under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted 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 Alarie (the applicant/father) and Ms Blackert (the mother) are the parents of [the Child] (born in 2003) (the child). The decision under review is about the attribution of the child’s care percentage to the parents.

2. On 4 September 2019, a Department of Human Services - Child Support (the department) objections officer partly allowed the mother’s objection to a decision made by a departmental officer on 18 June 2019, to attribute 0% of the child’s care to the father and 0% of the child’s care to the mother from 30 June 2017. The objections officer decided the care percentages in place prior to 30 June 2017 were to continue whereby the father is attributed with 10% of the child’s care and the mother is attributed with 90% of the child’s care. The objection officer also decided that notwithstanding the child had been granted youth allowance/unreasonable to live at home on 24 April 2019, from 12 April 2019, the mother continued to have care of the child.

3. On 27 September 2019, the father lodged an application for a review of the department’s decision with the Administrative Appeals Tribunal (the tribunal). On 9 March 2020, the tribunal conducted a hearing into the application. The parents participated in the hearing over the telephone. Prior to the hearing the department provided the tribunal and the applicant father with a bundle of documents taken from the department’s files (folios 1– 264). On 9 March 2020, the tribunal deferred its decision making to enable it to obtain additional information from the child’s school and from the Western Australian Department of Communities (Department of Communities). Information provided by the child’s school, [Name] (folios D1–D4) has been provided to the parties to the review.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. The issues which arise in this case are:

   a)    Was there a change in the child’s pattern of care from 30 June 2017? If so,

   b)    Does the change in the child’s pattern of care require the revocation of the care percentage determination? And, if so,

   c)    What is the new determination? 

   d)    Was there a terminating child support event on 12 April 2019?

CONSIDERATION

Issue a): Was there a change in the child’s pattern of care from 30 June 2017?

1. Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 applies if the parent “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Both sections reflect the idea that the department makes 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 up until the date of the notification and what was likely to happen thereafter?

2. On 9 May 2019 and 29 May 2019, the father and his representative and partner contacted the department, respectively, to advise it the child was out of the mother’s care and the child was applying for a Centrelink payment. The departmental officer who received the contact asked the father’s representative when the care changed. The father’s representative said she would get back to the officer after she discussed the details of the change with an officer from the Department of Communities. On 12 June 2019, the father contacted the department and advised that the child had been in neither his nor the mother’s care from 30 June 2017.

3. The father’s evidence to the tribunal was that by 30 June 2017, following his separation from the family in 2014, he had effectively lost contact with the child and he assumed she was in the care of her mother.

4. The father provided a letter dated 5 June 2019, from [Ms A] from the Department of Communities, Intensive Family Support team. [Ms A] wrote that the Department of Communities had been providing intensive family support services to the child since 30 June 2017. She wrote:

   Department records indicate that throughout this period, (the child) has been living away from home with only short stays with the mother… (the child) has not lived at home full-time since the commencement of Departmental involvement.

   To the Department’s knowledge, (the child) has received little to no financial support, except phone credit from her mother to support herself whilst living out of home.

   (The child) applied to Centrelink on 24/04/2019 for Youth Allowance/Unreasonable to live at home. This benefit has been granted.

5. The tribunal sought written information from [Ms A] and discussed its request with her. At the time this decision was finalised [Ms A] had not provided a written response to the tribunal’s request. However, the tribunal is satisfied it understands [Ms A]’s advice about the child’s living arrangements. [Ms A] explained she became engaged with the child and the child’s family after 30 June 2017, on referral from another part within the Department of Communities. [Ms A] told the tribunal the goal of the Department of Communities involvement was to support the family. That is, at 30 June 2017, the Department of Communities’ intention was to assist the child live with her family. [Ms A] also said at 30 June 2017, the mother was trying to get the child to return home.

6. The mother said while her daughter did not live with her 24/7, she (the mother) spent all of her time trying to get the child to return home. That is, at 30 June 2017, the mother’s intention was that the child continue to live in the family home. Indeed, in the later part of 2017 the mother was charged with abducting the child in an attempt to get the child off drugs and to establish parental control.

7. When a retrospective view is taken of where the child lived it is evident that the child did not live full time with the mother after 30 June 2017. The mother estimates the daughter spent about 3 or 4 nights a week and sometimes more at home. She said on some occasions her daughter’s boyfriend stayed with them at the home. On other occasions the daughter stayed at home without the boyfriend.

8. Notwithstanding the advantage of hindsight, the legislation requires the tribunal to consider what was intended at 30 June 2017 and for a following period. The tribunal is satisfied at that time the father’s intention was for the child to live with the mother, the mother’s intention was for the child to live with her and the Department of Communities’ involvement was aimed at supporting the mother care for her child.

9. The tribunal concluded it was not satisfied it was intended the child’s pattern of care would change on 30 June 2017. Therefore, the tribunal is not satisfied there was a change to the child’s care on 30 June 2017.

10. Given the child’s pattern of care did not change on 30 June 2017, the tribunal did not consider issues b) and c).

Issue d): Was there a terminating event on 12 April 2019?

1. Section 74 of the Act provides that if the Registrar becomes aware of a child support terminating event the Registrar must act to take it into account. A child support terminating event is defined in section 12 of the Act. Among other things a child support terminating event occurs if both the parents of the child are not eligible carers of the child (see section 7B of the Act).

2. Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parent’s existing percentage of care and a change in the percentage of care would result in a change to the cost percentage then the existing percentage of care determination must be revoked and replaced by a new percentage of care determination. Subsection 54F(2) of the Act sets out when the revocation of the determination takes effect. The date of effect depends on whether or not the department was notified of the care change within 28 days after it occurred. 

3. The objections officer’s statement recorded the child had been granted youth allowance/unreasonable to live at home on 24 April 2019 from 12 April 2019. The father advised the department on 9 May 2019, that the Department of Communities was assisting his daughter obtain payments from Centrelink. [Ms A] confirmed she assisted the child obtain youth allowance.

4. The way the department and the Department of Human Services (Centrelink) interprets and applies child support and social security legislation is set out in the online Child Support Guide (the Guide) and the Social Security Guide, respectively. The tribunal is not bound by law to apply the department’s and Centrelink’s policies as set out in the Guide and the Guide to Social Security Law, but provided these policies are consistent with the legislation, it must have regard to them and in the ordinary course, follow them (Re Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409) unless there is a cogent reason not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).

5. Centrelink assesses a child for their qualification for youth allowance. The Social Security Guide at 3.2.5.30 sets out the way it determines whether a child is able to be granted youth allowance at the independent rate further to a finding it is unreasonable for them to live at home or with a guardian:

   Criteria for unreasonable to live at home

   Young people are considered to be independent for YA, DSP and SpB purposes if they cannot live at the home of either or both their parents (1.1.P.20) because:

   ·of extreme family breakdown or other similar exceptional circumstances, OR

   ·it would be unreasonable to expect the person to do so as there would be a serious risk to his or her physical or mental well-being due to violence including family violence, child abuse, sexual abuse, neglect or other similar unreasonable circumstances, OR

   ·their parents are unable to provide the young person with a home because they lack stable accommodation.

   …

   If a young person is receiving continuous financial or other support from parents or another person acting as a long-term guardian, they CANNOT be considered independent under this category.

   …

   In order to be considered continuous support the support must, when considered in the context of the young person's situation, taking into account other support they receive, allow for the young person's basic needs. Basic needs includes, for example, food, accommodation, clothing and utilities. Continuous support must be regular and/or stable support that enables the young person to have a reasonable expectation that it will be received. Consideration should be given to the nature and intention of the support, that is, whether it is continuous rather than emergency in nature and intent, and whether it shows on-going concern for the young person.

6. Subchapter 3.7.2.70 of the Social Security Guide directs that a young person under 18 years of age who is unable to live at home due to severe family breakdown, abuse or other exceptional circumstances is to be referred for social work assessment to determine whether it is unreasonable for them to live at home.

7. Given the granting of youth allowance at the independent rate/unreasonable to live at home, the tribunal is satisfied the mother ceased to be an eligible carer for the child from the date of grant (12 April 2019).

8. The mother said since the child received youth allowance at the independent rate the child had returned home to live. The father doubted this was the case. The mother said she was unaware of whether the child continued to receive youth allowance at the independent rate.

9. In the circumstances the tribunal considered the mother’s percentage of care should be reduced to 0% from 12 April 2019.

10. Therefore, revocation of the existing determination takes effect in accordance with paragraph 54F(2)(c) of the Act on 11 April 2019 and a new determination is issued attributing the mother with 0% of the child’s care from 12 April 2019.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the determination that was in place prior to 30 June 2017 is revoked on 11 April 2019 and from 12 April 2019 a new determination is to be issued which attributes the mother and the father each with 0% of their child’s care.