Ball and McAdam (Child support)

[2019] AATA 4865

Ball and McAdam (Child support) [2019] AATA 4865 (30 September 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC017021

APPLICANT:  Mr Ball

OTHER PARTIES:  Child Support Registrar

Ms McAdam

TRIBUNAL:Member P Sperling

DECISION DATE:  30 September 2019

DECISION:

The decision under review is affirmed. (This means that the application for review is unsuccessful.)

CATCHWORDS
CHILD SUPPORT – application for an administrative assessment – whether a non-parent was an eligible carer – extreme family breakdown – application for an administrative assessment was correctly accepted – 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. This matter relates to child support in respect of [Child] (the child), currently 16 years of age.  Mr Ball is the child’s father and Ms McAdam became the child’s grandmother in 2000 by virtue of marriage to Mr McAdam, the child’s maternal grandfather.

2. Ordinarily, child support is payable by one parent to the other parent of a particular child.  However, the law provides that in limited circumstances, a person who is not a parent may apply, in effect to receive child support from the parents of the child.  On 18 March 2019 Ms McAdam applied to the Child Support Registrar (“the Registrar”) for administrative assessment of child support for the child on the basis that she was a “non-parent carer”.

3. On 4 April 2019, the Registrar accepted her application because the Registrar considered that the particular circumstances of the case were such that Ms McAdam was a non-parent carer as defined in the law. On 23 April 2019 Mr Ball objected to this decision and on 12 July 2019 the Registrar disallowed the objection.

4. Mr Ball applied to the Tribunal for an independent review on 26 July 2019. On 30 September 2019, the Tribunal held a hearing. Mr Ball and Ms McAdam attended the hearing via conference telephone and provided evidence on affirmation. Prior to the hearing the Tribunal gave permission for Mr [A], Mr Ball’s lawyer, to provide legal representation during the hearing. At the appointed time of the hearing the Tribunal attempted to contact Mr [A] by telephone to enable him to participate in the hearing, but was unsuccessful in doing so. The Tribunal proceeded to conduct the hearing taking evidence from Mr Ball and Ms McAdam.

5. In considering this matter, the Tribunal took into account the oral evidence of the parties given during the hearing and the documents provided by the Department in accordance with the Administrative Appeals Tribunal Act 1975 numbered 1 to 153 as well as an additional submission provided by Ms McAdam numbered B1 to B6. Copies of these documents were provided to all parties.

ISSUES

1. Under section 25A of the Child Support (Assessment) Act 1989 (“the Act”), someone who is not a parent of a particular child can only apply for an administrative assessment in relation to that child if the person is an eligible carer of the child. The expression “eligible carer” is defined in section 7B of the Act, reproduced below:

   7BMeaning of eligible carer

   (1)           In this Act, eligible carer, in relation to a child, means a person who has at least shared care of the child.

   (2)           Despite subsection (1), if:

   (a)a person cares for a child; and

   (b)the person is neither a parent nor a legal guardian of the child; and

   (c)a parent or legal guardian of the child has indicated that he or she does not consent to the person caring for the child;

   then the person is not an eligible carer in relation to the child unless it would be unreasonable in the circumstances for a parent or legal guardian of the child to care for the child.

   (3)           For the purposes of subsection (2), it is unreasonable for a parent or legal guardian to care for a child if:

   (a)the Registrar is satisfied that there has been extreme family breakdown; or

   (b)the Registrar is satisfied that there is a serious risk to the child’s physical or mental wellbeing from violence or sexual abuse in the home of the parent or legal guardian concerned.

2. There is no dispute that from 18 March 2019 the child has been 100% in the care of Ms McAdam and Mr McAdam, the child’s maternal grandparents.

3. During the hearing Mr Ball, the child’s father advised that he did not consent to Ms McAdam and Mr McAdam caring for the child from 18 March 2019. Mr Ball acknowledged that he told Mr McAdam over the phone in March 2019 that he would rather the child be in Mr McAdam’s care than in the previous care arrangement, with her mother’s ex-partner. However Mr Ball said that he has always advised the Victorian Department of Health and Human Services (DHHS) that his preference is that the child is in his care, because this would provide her with more stability. Further, he said that he had requested care of the child after her mother had passed away and he had been assessed twice by DHHS, once in August 2017 and again in March 2018, and found suitable to provide care for the child. However, on both occasions, after he had been found to be a suitable carer, the child had chosen to live with other people and he was told by DHHS that he had no choice in the matter because she was old enough to make this choice.

4. During the hearing Ms McAdam told the Tribunal that she was not aware of any communication from Mr Ball indicating that he wished to have care of the child after the child came into the care of Ms McAdam and Mr McAdam. She said that Mr McAdam had tried to contact Mr Ball on several occasions after March 2019 to discuss care and other arrangements related to the child but had been unsuccessful in making any contact. She said she thought that Mr Ball had blocked their phone number and was not taking their calls.

5. There is no evidence to confirm categorically that Mr Ball communicated that he did not consent to Ms McAdam and Mr McAdam having care of the child from 18 March 2019. Nor is there any evidence that Mr Ball was considered by DHHS at the time to be suitable to provide care for the child. However, the Tribunal accepts Mr Ball’s clearly stated view (as outlined in his application to the Tribunal and his evidence during the hearing) that he did not consent to Ms McAdam and Mr McAdam providing care of the child from 18 March 2019.

6. Therefore it follows that the issue on which this decision turns is whether it would be unreasonable for Mr Ball to care for the child because of either of the two circumstances specified in subsection 7B(3).

7. Under the Child Support (Registration and Collection) Act 1988 (“the Registration and Collection Act”), if an application for administrative assessment is accepted, then a child support liability must immediately be registered.[1]  In this case, that would mean that Mr Ball would immediately become liable to pay the assessed amount (if any) to Ms McAdam.

CONSIDERATION

[1] Unless the person entitled to receive the child support opts to collect it privately.

1. Firstly, the Tribunal notes that under the child support law, if an application is accepted for administrative assessment of child support, child support is liable to be paid from the date of the application: see section 24A of the Registration and Collection Act. The Tribunal infers from that that when an application is made, the application must be determined on the facts that exist on that day.

2. The broad history is not in dispute.  The child was in the care of her mother, Ms McAdam, until her mother passed away sometime in 2017, at which time the child came into the care of her mother’s ex-partner. She remained in her mother’s ex-partner’s care until 18 March 2019.

3. During the hearing Mr Ball said that the child had been “bounced around” between different people for different reasons and had not had an official guardian at any time. He said that this had not been good for the child, made it hard for him to have a relationship with the child and had exacerbated her instability.

4. Mr Ball confirmed that there were no court orders in place on 18 March 2019 regarding care of the child and that he was the child’s only legal guardian. He told the Tribunal that the last substantial period of care that he had of the child was in about 2009, over a period of about 12 months during which he had shared care with the child’s mother. He said that, after this, the child’s mother abruptly ceased his access to the child and since then he has had “sporadic” care of the child over the years. He did not provide exact dates on which he had care of the child but advised that since 2009 he had care of the child for about 14 days per year, mostly during school holidays and at Christmas time. He also advised that in September 2017 he had care of the child for about two weeks, after he moved back to Melbourne, but the child’s aunt came and unexpectedly took the child away while he was away on a work trip.    Since then Mr Ball said that he has seen the child over a couple of days when she was in hospital in early 2018, and she also stayed with him for one night in December 2018.

5. He concluded by saying that in March 2019 he had been willing to have care of the child and spoke again to DHHS about this but was told that the child was old enough to choose where she lived, and she didn’t choose to live with him at the time. He said that on this basis he reluctantly consented to the child being in the care of Ms McAdam and Mr McAdam from 18 March 2019 although he would have preferred her to be in his care.

6. During the hearing Mr Ball summarised his position as follows:

   -    he doesn’t consent to the child being in the care of Ms McAdam and Mr McAdam and he didn’t consent to this arrangement from 18 March 2019;

   -    he has done everything possible to get care of the child, including moving back to Melbourne to live so that he was near her;

   -    it is not his fault that the child lived with her mother for many years and he was not allowed to have much contact.

7. Ms McAdam said that she and Mr McAdam have been caring for the child since 18 March 2019 and that the child has indicated that she wanted to live with them after her previous carer said that he was no longer able to care for her. Ms McAdam advised that she was not aware of any communication from Mr Ball in March 2019 or since, advising that he wished to have care of the child. Ms McAdam said that since March 2019 Mr McAdam had been trying to contact Mr Ball. The Tribunal notes that in his oral evidence Mr Ball said that around this time he got tired of being contacted by “so many people” about various aspects of the child’s life and care arrangements. He said that no one gave him any choice about what was happening with the child, so he stopped answering these phone calls, including calls from Mr McAdam.

8. Ms McAdam also advised that she did not think there would be a serious risk to the child if the child was in Mr Ball’s care but said that the child has categorically stated that she doesn’t want to live with Mr Ball. In her written submission to the Tribunal Ms McAdam advised that she and Mr McAdam are happy to care for the child, despite being under financial pressure, regardless of the decision the Tribunal makes about her child support application. During the hearing Ms McAdam concluded her evidence by saying that the child has now settled well into a new school; she has plans for further study next year and is being actively encouraged to communicate with Mr Ball.

9. In making the original decision, the Registrar had determined that the statutory criteria of  extreme family breakdown is applicable in this case because Mr Ball has not been assessed as providing care for the child since 11 March 2010.

10. Subsection 7B(3) of the Act provides that, where a parent or legal guardian has indicated that he or she does not consent to another person caring for their child, that other person can only be an “eligible carer” if either:

    (a)the Registrar is satisfied that there has been extreme family breakdown; or

    (b)the Registrar is satisfied that there is a serious risk to the child’s physical or mental wellbeing from violence or sexual abuse in the home of the parent or legal guardian concerned.

11. The second limb is very specific and easily dealt with in this case.  There is no evidence capable of supporting a finding that there was violence or sexual abuse in the home of Mr Ball and Ms McAdam advised during the hearing that she did not consider that there would be a serious risk to the child if she was in Mr Ball’s care.  Therefore Ms McAdam cannot be an eligible carer via paragraph 7B(3)(b).

12. The Tribunal then considered paragraph 7B(3)(a) of the Act. The evidence of Mr Ball is that the child is welcome to live with him and that it is his preference that the child lives with him to provide her with more stability. Overall, his position is that the child is better off with him than she would be in any other care arrangement, but that is not the test posed by the law.  The test is whether there has been extreme family breakdown.

13. The meaning of the term extreme family breakdown is not defined in the Act. In such circumstances the Tribunal can seek guidance from the Child Support Guide (the Guide) and, although not bound by policy as set out in the Guide, the Federal Court has held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. There are no circumstances in this matter that would require the Guide to be disregarded.

14. In relation to extreme family breakdown, part 2.1.1 of the Guide states as follows:

    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.

15. The Tribunal has carefully considered the evidence provided by Mr Ball and Ms McAdam. On the basis of the available evidence the Tribunal is satisfied that Mr Ball has had very little contact with the child since he had shared care of the child up to 11 March 2010. Further, according to his own evidence, Mr Ball has had limited sporadic care of the child, to a maximum of about 14 days per year, since the child’s mother passed away in 2017. While Mr Ball may have wished to and attempted to have more care of the child since the child’s mother passed away, the fact is that he didn’t have anything more than what could be described as irregular, limited contact since 2010. Accordingly, the Tribunal finds that in March 2019, when Ms McAdam applied for assessment, a substantial period had passed since Mr Ball was last assessed as providing care for the child. As such the Tribunal is satisfied that at the time of Ms McAdam’s application there had been extreme family breakdown in accordance with paragraph 7B(3)(a) of the Act.

16. The Tribunal has found that, even though Mr Ball has made clear that he did not consent to Ms [McAdam] caring for the child, it would be unreasonable for Mr Ball to care for the child from the date of Ms [McAdam]’s application because there had been extreme family breakdown. It therefore follows that the Tribunal determines that at the time of her application for assessment Ms McAdam was an eligible carer under the Act when she made application for child support assessment on 18 March 2019 as she met the criteria set out in subsection 7B(2) of the Act.

17. Section 27 of the Act provides that an application for administrative assessment of child support must be made to the Registrar in a manner specified by the Registrar. The Tribunal accepts that Ms McAdam’s application met this requirement.

1. Section 30 of the Act then provides that if the Registrar is satisfied that an application has been properly made for administrative assessment of child support for a child, the Registrar must accept the application. The Tribunal is satisfied that an application was properly made by Ms McAdam and therefore finds that the decision to accept her application is legally correct and is affirmed.

DECISION

The decision under review is affirmed. (This means that the application for review is unsuccessful.)