Andrew Wade and William Wade (Child support)

[2016] AATA 2005

Andrew Wade and William Wade (Child support) [2016] AATA 2005 (5 October 2016)

APPLICANT  Mr Andrew Wade

OTHER PARTIES  Mr William Wade

Ms Hughes

Child Support Registrar

DECISION DATE  5 October 2016

DECISION

The Tribunal affirms the decision under review.

CATCHWORDS

Child Support – application for administrative assessment by non-parent carer – parent does not consent to applicant caring for the child - whether applicant an eligible carer – whether extreme family breakdown or serious risk to child’s wellbeing from violence or sexual abuse – 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 William Wade and Ms Hughes are the parents of [Child 1] (born 2006). Mr Andrew Wade is her grandfather. This is a review of a decision made by the Department of Human Services on behalf of the Child Support Registrar to refuse to grant Mr Andrew Wade’s application for an assessment of child support for [Child 1].

2. Mr Andrew Wade applied for the assessment on 4 November 2015. On 15 January 2016, the Department refused to accept the application. On 17 March 2016, an Objections Officer of the Department disallowed Mr Andrew Wade’s objection to that decision.

3. On 22 April 2016, Mr Andrew Wade applied for review of that decision. The Tribunal heard the application for review on 24 June and 29 September 2016.

RELEVANT LAW

1. The Registrar assesses child support under the Child Support (Assessment) Act 1989. Under section 25A, a person who is not a parent may apply for an assessment against both parents if they are an “eligible carer” of the child.

2. To deal with Mr Andrew Wade’s application for review, the Tribunal considered whether he was an eligible carer when he applied for the assessment.

CONSIDERATION

Evidence

1. The Tribunal considered documents relevant to the decision under review provided by the parties and the Department. Mr Andrew Wade and Ms Hughes gave evidence on both hearing days. Mr William Wade gave evidence on 29 September 2016.

Is Mr  Andrew Wade an eligible carer?

1. Subsection 7B(2) applies to carers who are not parents or legal guardians. It provides that, if a parent does not consent to them caring for the child, they are not an eligible carer unless it is not reasonable for the child to live with that parent. This will be the case if the Registrar is satisfied:

   ·     there has been extreme family breakdown; or

   ·     there is a serious risk to the child's physical or mental wellbeing from violence or sexual abuse in the home of the parent concerned.

2. At hearing, the parties confirmed the information in the Tribunal papers that [Child 1] left Ms Hughes’s care in early July 2015 when she did not return from staying with Mr William Wade. She said [Child 1] moved to Mr Andrew Wade’s home in October 2015 and [Child 1] has not spent time with Ms Hughes since then. 

3. There are no court orders in relation to [Child 1’s] care and Mr Andrew Wade was not her legal guardian when he applied for the assessment. Ms Hughes confirmed she did not consent to [Child 1] living with him and he is not an eligible carer unless it is not reasonable to [Child 1] to live with her.

4. The Child Support Guide at 2.1.1 provides the following guidance to decision makers.

   The Registrar will be satisfied that there has been an extreme family breakdown if:

   ·     the child has never lived with the parent, or

   ·     there has been a substantial period since the parent has provided care for the child, or

   ·     other circumstances indicate extreme family breakdown.

   However, the Registrar is unlikely to be satisfied that there has been an extreme family breakdown if the parent has had frequent and regular contact with the child over a substantial part of the period when another person provided care for the child.

   The Registrar may seek evidence of extreme family breakdown.

   Serious risk to child's physical or mental wellbeing

   When determining whether there is a serious risk to the child's mental or physical wellbeing as a result of violence or sexual abuse in the home of the parent or legal guardian, the individual circumstances of each case, including any evidence provided, will be considered. Examples of evidence that may assist to substantiate a claim of serious risk of violence/abuse to the child include, but is not limited to, police reports/statements; apprehended violence orders; domestic violence orders; medical reports; or applications for a restraining order.

5. The Tribunal is not bound by this policy and must make a decision based on the merits of the particular case. However, it will apply the policy unless there a cogent reason not to do so.[1]

Extreme family breakdown

[1] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake No 2)

1. When Mr Andrew Wade applied for the assessment, [Child 1] had not spent more than a few months out of Ms Hughes’s care. This was not a substantial period and the Tribunal does not find there was extreme family breakdown because Ms Hughes had not cared for her during that period. The Tribunal considered whether there were other circumstances that indicate extreme family breakdown.

2. Mr William Wade said [Child 1] told him that she did not want to return to live with Ms Hughes. In itself, this does not suggest family breakdown in a child of nine years. 

3. Mr William Wade said he took her to a general practitioner who referred her to a psychologist. [Ms A], registered psychologist, provided a report stating that [Child 1] attended her offices on four occasions after she went to live with her father and before she went to live with Mr Andrew Wade. The report does not state that she diagnosed any particular condition and does not state what therapy, if any, she provided. However, [Ms A] states that by the fourth session, “[Child 1’s] anxiety and depression had significantly improved and treatment was terminated”. Mr Andrew Wade said that she did not continue with treatment when she moved to his home but has recently started attending another psychologist.

4. [Ms A] reported that [Child 1] told her that her mother called her “whore” and “cunt” and that she was responsible for all of the housework and laundry, including the ironing. [Child 1] claimed she was “frequently berated and hit if she was unable to complete all of the housework prior to leaving for school”. She also told [Ms A] that she was responsible for cleaning her six-year old brother when he was faecally incontinent. She said this happened four or five times a day.

5. The Tribunal accepts [Ms A] faithfully reported [Child 1’s] claims. However, she worded her report carefully and it does not say whether she believed them to be true or false.

6. Ms Hughes told the Tribunal that [Child 1] was in trouble before she went to her father’s home in July 2015 because she had not returned home after school with her brothers. Instead, she went into town with a friend. She was grounded and could not have her iPad for two weeks. She said [Child 1] said that said she told her she wanted to go to live with her father and she asked her to write down the reasons. After the hearing, she provided a statement in a child’s hand. The Tribunal accepts it is from [Child 1] as Mr William Wade and Mr Andrew Wade did not suggest otherwise. It gives five reasons for wanting to live with Mr William Wade that are unrelated to the claims she later made to [Ms A]. They include that she can stay up late and do anything and go anywhere she wants. Ms Hughes also provided statements from [Child 1] expressing affection for her and statements from friends and relatives that indicate [Child 1] is happy in Ms Hughes’s company.

7. The Tribunal would not ordinarily give weight to written statements from young children for the purposes of a hearing. They are not inherently credible because children might be subject to pressure or suggestion from a parent. However, Ms Hughes has not had contact with [Child 1] since July 2015 and [Child 1] did not make the statement to support Ms Hughes’s case in this proceeding. The Tribunal therefore gives it some weight as evidence of [Child 1’s] state of mind immediately before she left Ms Hughes’s care.

8. The statement and other evidence provided by Ms Hughes undermines the claims made by [Child 1] to [Ms A]. While she preferred to live with Mr Andrew Wade, the Tribunal is not satisfied her relationship with Ms Hughes had broken down when he applied for the assessment. In that case, the Tribunal does not find that it was not reasonable for [Child 1] to live with Ms Hughes because of extreme family breakdown.

Serious risk to physical or mental wellbeing

1. The serious risk to physical and mental wellbeing must arise from physical or sexual abuse. If accepted, [Child 1’s] claims about Ms Hughes might amount to physical abuse that risks her physical and mental well-being.

Housework

1. Ms Hughes told the Tribunal that [Child 1] had household chores to perform but they were not onerous. The Tribunal suggested to Mr Andrew Wade that [Child 1’s] claims are unlikely to be true and suggested children sometimes have an exaggerated perception of their share of housework. It asked him whether this was a more likely explanation than a nine-year old being responsible for all chores in a relatively large household.

2. Mr Andrew Wade said he believed [Child 1] because he had witnessed Ms Hughes’s behaviour towards [Child 1] before her separation from his son. He said [Child 1] was seven years old at that time and Ms Hughes made [Child 1] do all the housework including hanging out the washing. He said Ms Hughes hit her when she did not wash the dishes properly. The Tribunal asked him if had intervened and he said he spoke to Mr William Wade. When pressed, he said he took no other action about behaviour he now claims is abusive and did not provide any explanation for failing to protect [Child 1].

3. When asked by the Tribunal, Mr Andrew Wade could not explain how [Child 1] could reach a washing line or manipulate an iron or a vacuum cleaner at seven years old. In addition, Mr William Wade said that [Child 1’s] older brother, [Child 2], did all the housework before their separation. This is inconsistent with Mr Andrew Wade’s account. In the circumstances, the Tribunal finds Mr Andrew Wade’s eyewitness account is unreliable and does not corroborate the claims she made to [Ms A].

4. The Tribunal prefers Ms Hughes’s evidence and concludes that [Child 1] exaggerated her household responsibilities. In its view, the extent of exaggeration affects the credibility of other claims she made to [Ms A].

Physical abuse

1. Ms Hughes admitted to smacking [Child 1] in the past for discipline but said she had not done so since separation from Mr William Wade.  She said that she stopped at that time because she “did not like the person I had become”. However, in her written statement to the Department she said she stopped hitting [Child 1] because the law changed and she was now prohibited from doing so.

2. Mr Andrew Wade claims to have witnessed physical abuse by Ms Hughes before separation from Mr William Wade and this is consistent with her evidence. Mr William Wade confirmed Mr Andrew Wade had spoken to him about Ms Hughes’s abusive behaviour before their separation. He said he was unhappy about it but took no action because he was [an occupation]. He said he was home one day per week and was very tired on that day.

3. The Tribunal finds this to be an entirely unacceptable excuse for a parent failing to protect a child from abuse. It infers Mr William Wade did nothing because Ms Hughes’s behaviour before separation did not give rise to risk of physical harm and/or that he accepted it was an appropriate method of discipline. His current claims to the contrary are self-serving (as he is supporting his father’s claims) and the Tribunal does not give them much weight.  

4. The Tribunal gives little weight to the claims made by [Child 1] to [Ms A] for the reasons outlined above.

5. On the evidence provided, the Tribunal is not satisfied that [Child 1] was at risk of physical harm from violence in Ms Hughes’s home.

Verbal abuse

1. Ms Hughes denied verbally abusing [Child 1] and, in particular, she said she had never used the word “cunt”. Mr William Wade said that [Child 1] and her siblings had reported the same verbal abuse to him in 2014 after his separation from Ms Hughes. He provided a statement from [Child 1’s] older brother, [Child 2], that (among other things) she verbally abused him in the same manner. It does not give weight to statements because it appears [Child 2] wrote it at Mr William Wade’s request to support the application for review. The Tribunal cannot be sure [Child 2] gave his statement freely.

Provision of intimate personal care to her brother

1. Ms Hughes did not dispute that [Child 1] was often responsible for her younger brother’s intimate personal care needs.  She said that her children had enjoyed changing their younger sibling’s nappies when they were babies and that this was no different. However, when pressed, she agreed that it is not the same for an older child.

2. In the Tribunal’s view, it is inappropriate for a child of nine to provide intimate personal care to a sibling, particularly of the opposite gender. The Tribunal accepts that [Child 1] found that task distasteful and reasonably objected to it. More importantly, it is unlikely she had the judgment and maturity to provide care to her brother with dignity.

3. Ms Hughes’s evidence on this issue casts doubt on her judgment and raises a suspicion about her capacity to provide care for [Child 1] in a way that does not adversely affect her mental wellbeing. However, on the other hand, her honest admission about this matter was against interest. That suggests her evidence that she did not verbally or physically abuse [Child 1] is credible.

4. In any event, the requirement to provide intimate care to her brother is not sexually abusive and falls short of physical abuse. It is not behaviour that makes it unreasonable for her to live with Ms Hughes according to the definition outlined above.

[Ms A’s] opinion

1. As noted, [Ms A] did not report that she accepted the truth of [Child 1’s] claims. However, she did conclude that, “returning [Child 1] back to her Mother’s care would be highly detrimental to her psychological welfare”. She said that she had recovered from anxiety and depression after approximately four sessions.

2. The Tribunal does not accept the truth of the claims made by [Child 1] and [Ms A’s] report does not detail any other physical and sexual abuse. It accepts [Child 1] was depressed and anxious when she first spoke to [Ms A] but does not conclude that those conditions arose from physical or sexual abuse in Ms Hughes’s home.

Conclusion

1. The Tribunal finds there was no family breakdown when Mr Andrew Wade applied for the assessment and that the claims of abuse made by [Child 1] to [Ms A] were untrue, exaggerated or do not fall within the relevant definition. It is not satisfied there was a serious risk to [Child 1’s] physical or mental welfare because of physical or sexual abuse on other evidence. In that case, the Tribunal does not find that it was unreasonable for [Child 1] to live with Ms Hughes at the relevant time and, as Ms Hughes did not consent to [Child 1] living with Mr Andrew Wade, he was not an eligible carer. For that reason, the Tribunal must affirm the decision to refuse to grant his application for a child support assessment.

DECISION

The Tribunal affirms the decision under review.