Bowdler and Rumball (Child support)

[2018] AATA 1471

Bowdler and Rumball (Child support) [2018] AATA 1471 (16 March 2018)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2018/BC013343

APPLICANT:  Mr Bowdler

OTHER PARTIES:  Child Support Registrar

Mr Rumball

TRIBUNAL:  Member A Ducrou

DECISION DATE:  16 March 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS

Child support - Application for administrative assessment by non-parent carer - Unreasonable for parent to provide care - Non-parent is an eligible carer - Application 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. Mr Bowdler is the father of [Child 1] (born November 2003). [Child 1]’s mother, [Ms A] is deceased. This review is about whether an application made by Mr Rumball for the administrative assessment of child support for [Child 1] should be accepted.

2. Records maintained by the Department of Human Services – Child Support (the Department) show that Mr Rumball made an application to the Department on 14 August 2017 as a non-parent carer for administrative assessment of child support for [Child 1]. Mr Rumball provided documents in support of his application to the Department on 15 August 2017. The Department’s records show that an officer of the Department telephoned Mr Bowdler on 15 August 2017 to discuss Mr Rumball’s application but was unsuccessful in contacting Mr Bowdler.

3. On 22 August 2017 an officer of the Department made a decision to accept Mr Rumball’s application for an administrative assessment of child support for [Child 1]. The Department’s records show that a child support case for [Child 1] was registered from 14 August 2017. Mr Bowdler was the person liable to pay child support for [Child 1] under the administrative assessment for child support. Mr Rumball was the person who was entitled to receive child support for [Child 1] under the administrative assessment.

4. On 14 September 2017 Mr Bowdler lodged an objection to the decision made on 22 August 2017. On 12 January 2018 an objections officer of the Department decided to disallow the objection. As a result the child support case for [Child 1] remained in place with Mr Bowdler being the person liable to pay child support for [Child 1] to Mr Rumball under the administrative assessment. On 23 January 2018 Mr Bowdler made an application to this tribunal electronically for independent review of the objections officer’s decision.

5. The tribunal conducted a hearing on 16 March 2018. Mr Bowdler and Mr Rumball participated at the hearing by conference telephone. They gave oral evidence on affirmation and made oral submissions. Prior to the hearing Mr Bowdler provided the tribunal with documents which included his written submissions. The tribunal had before it documents from the Registrar (numbered 1 to 127) and the documents from Mr Bowdler (numbered A1 to A135). Copies of the documents were provided to the parties. The tribunal made its decision on 16 March 2018.

ISSUES

1. The statutory provisions relevant to this review are set out in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Family Law Act 1975 (the Family Law Act).

2. The issue which arises in this case is:

   ·       Should the application Mr Rumball made for administrative assessment of child support for [Child 1] be accepted?

CONSIDERATION

Issue – Should the application Mr Rumball made for an administrative assessment of child support for [Child 1] be accepted?

1. Section 25A of the Assessment Act permits a person who is not a parent of a child to apply to the Registrar for administrative assessment of child support for the child, provided that certain specified requirements are met. The first requirement is set out in paragraph 25A(a) of the Assessment Act which requires the applicant to be an eligible carer of the child.

2. The meaning of “eligible carer” is set out in section 7B of the Assessment Act. Under subsection 7B(1) a person is required to have at least shared care of the child in order to be an eligible carer in relation to the child. Subsection 7B(2) of the Assessment Act limits the application of subsection7B (1) in circumstances where a person who is neither a parent nor a legal guardian of the child cares for a child.

3. Under subsection 7B(1) provides if a parent or legal guardian of the child has indicated that they do not consent to a person who is neither a parent or a legal guardian of a child caring for the child then the person who is not the child’s parent or legal guardian 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. Subsection 7B(3) provides that for the purposes of subsection 7B(2) of the Assessment Act it is unreasonable for a parent or legal guardian to care for a child if the Registrar is satisfied that there has been extreme family breakdown or that there is a serious risk to the child’s physical or mental well-being from violence or sexual abuse in the home of the parent or legal guardian concerned.

4. The Assessment Act does specify the circumstances in which there is extreme family breakdown. This is discussed at section 2.1.1 of the government’s online policy guide, the Child Support Guide, (the Guide) Department of Social Services version 4.30. The tribunal is not bound by policy. However, in Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 the Full Court of the Federal Court held that tribunal decision-making could be informed by government policy which is not inconsistent with the provisions or objects of the legislation. In this case the tribunal accepted that the policy is consistent with the objects of the Assessment Act and that there was no inconsistency between the relevant legislative provisions and the policy for determining whether there has been extreme family breakdown that makes it unreasonable for a parent or legal guardian to care for a child.

5. Under section 26A of the Assessment Act a non-parent carer of a child under a child welfare law may apply for child support for the child only if the non-parent carer is a relative of the child. Under subsection 5(1) of the Assessment Act “non-parent carer” means an eligible carer who is not a parent of the child. Under subsection 5(4) of the Assessment Act the relatives of a person are taken to include a parent of the person and the person’s relatives. Under subsection 5(1) the meaning of “parent” includes an adoptive parent and for children born because of artificial conception procedures and surrogacy procedures a person who is a parent of the child under the Family Law Act. However, the definitions of “relative” and “parent” are not exhaustive.

6. Under section 7 of the Assessment Act it provides expressions used in Part VII of the Family Law Act have the same meaning for the purposes of the Assessment Act provided that no contrary intention appears. Part VII of the Family Law Act relates to children. The definition of relative of a child for the purposes of Part VII of the Family Law Act is set out in subsection 4(1) of the Family Law Act. The definition provides that relative of a child includes a step-parent of the child. Under subsection 4(1) of the Family Law Act the definition of step-parent in relation to a child includes a person who is not a parent of the child who is or has been a de facto partner (within the meaning of section 60EA of the Family Law Act) of a parent of the child and who treats, or at any time while a de facto partner of the parent treated the child as a member of the family formed with the parent.

7. Under section 60EA of the Family Law Act a person is the de facto partner of another person if they are in a de facto relationship with the other person. The meaning of de facto relationship is set out in section 4AA of the Family Law Act. Subsection 4AA(1) provides that a person is in a de facto relationship with another person if they are not legally married to the other person, they are not related by family and having regard to the circumstances of the relationship, they have a relationship as a couple living together on a genuine domestic basis. Paragraphs (a) to (i) of subsection 4AA(2) set out circumstances that the decision-maker may take into account when working out if persons have a relationship as a couple. The circumstances include:

• the duration of the relationship;

• the nature and extent of their common residence;

• whether a sexual relationship exists;

• the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

• the ownership, use and acquisition of their property;

• the degree of mutual commitment to a shared life;

• whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

• the care and support of children;

• the reputation and public aspects of the relationship.

1. The circumstances listed in subsection 4AA(2) are not exhaustive. Subsection 4AA(3) provides that no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.

2. It was not at issue that Mr Rumball contacted the Department on 3 August 2017 and advised that he intended to apply for an administrative assessment for child support for [Child 1]. The Department’s records show that he contacted the Department again on 14 August 2017 and made his application on the basis that [Child 1] was in his care for 100% of the time under an interim accommodation order. The documents that Mr Rumball provided the Department with on 15 August 2017 included a copy of an interim accommodation order and its conditions made by the Children’s Court of [State 1]at [City 1] on 26 July 2017. Based on those documents the tribunal finds that proceedings were instituted by the Department of Health and Human Services [State 1] under the Children, Youth and Families Act 2005 ([State 1] ) in relation to [Child 1]. The tribunal finds that at a hearing held on 26 July 2017 in relation to those proceedings [Child 1] was placed into the care of Mr Rumball from 26 July 2017 pending a further hearing scheduled for 6 October 2017.

3. The tribunal finds that the Department made a decision to accept Mr Rumball’s application for administrative assessment of child support for [Child 1] on 22 August 2017. The tribunal finds based on the Department’s records that a child support case for [Child 1] was registered with effect from 14 August 2017 with Mr Rumball as the person entitled to receive child support from Mr Bowdler as the person liable to pay child support under the administrative assessment.

4. Mr Bowdler disagreed strenuously with the decision to accept Mr Rumball’s application for several reasons. The first reason was that Mr Rumball was not [Child 1]’s parent and that he was not [Child 1]’s legal guardian. Mr Bowdler emphasised that he never consented to [Child 1] being in Mr Rumball’s care. Mr Bowdler acknowledged that he had consented to [Child 1] remaining in [State 1]  until after the 2017 school year ended rather than her moving interstate to live with him. However, this did not mean that he consented to [Child 1] living with Mr Rumball or being in his care. Even though Mr Bowdler wasn’t living in [State 1]  at that time it was not unreasonable for [Child 1] to live with his mother who lived in [State 1] . Mr Bowdler disagreed that Mr Rumball was eligible to apply for child support for [Child 1] as a non-parent carer on the basis that Mr Rumball was not [Child 1]’s step-parent because Mr Rumball was not in a de facto relationship with[Ms A].

5. The objections officer found that [Child 1] had been placed in Mr Rumball’s care from 26 July 2017 under the interim accommodation order made on that date. The objections officer was satisfied that the interim accommodation order was a child welfare law and determined that under section 26A of the Assessment Act Mr Rumball was able to apply for child support for [Child 1] provided that he, being a non-parent carer was a relative of [Child 1]. It was not at issue and the tribunal accepted that the interim accommodation law was a child welfare law for the purposes of the legislative provisions relevant to this review.

6. The objections officer found that Mr Rumball and [Ms A] had separated and that they were not in a de facto relationship with each other when Mr Rumball made his application. However, based on records from the Department of Human Services – Centrelink (Centrelink) the objections officer determined that Mr Rumball and [Ms A] were in a de facto relationship from at least 7 October 2016 to 16 May 2017. The objections officer noted that the Department’s records confirmed that [Child 1] resided with [Ms A] during that period and that Mr Rumball provided oral evidence regarding his care of [Child 1] both before and after his separation from[Ms A]. The objections officer found that the relationship between Mr Rumball and [Ms A] was a de facto relationship as defined in section 4AA of the Family Law Act. On that basis the objections officer determined that Mr Rumball was [Child 1]’s step-parent under the relevant legislation and that he was eligible to apply for child support for [Child 1] as her relative under section 26A of the Assessment Act.

7. Mr Bowdler maintained that those findings were not consistent with the evidence that was provided to the Department. In particular, Mr Bowdler contended that they did not establish that Mr Rumball and [Ms A] were in a de facto relationship having regard to the matters that are required to be taken into account under section 4AA of the Family Law Act. Mr Bowdler acknowledged that apart from brief contact he had with [Ms A] and Mr Rumball in 2008 or 2009 he did not have direct knowledge of the nature of their relationship. However, Mr Bowdler maintained that the Department had not taken steps to obtain information and/or evidence in relation to the circumstances of the relationship between [Ms A] and Mr Rumball as required under paragraph 4AA(1)(c). At the hearing Mr Bowdler pointed out that information that Mr Rumball had provided about separating from [Ms A] approximately 12 months before she passed away in August 2017 conflicted with the information Centrelink had recorded about them being in a de facto relationship. Mr Bowdler maintained that information that had been provided to the Department of Health and Human Services [State 1] (DHHS) confirmed that the relationship between Mr Rumball and [Ms A] was an on and off relationship and that it was not of sufficient duration to qualify as a de facto relationship as required. Mr Bowdler maintained further that DHHS documents stated that [Ms A] was in a relationship with another person and that she and [Child 1] and her son with Mr Rumball resided with that person at a property owned by the person’s mother from March 2016 until May 2017. Mr Bowdler maintained that [Ms A] was engaged to the other person.

8. Mr Rumball told the tribunal that he separated from [Ms A] around 18 months before [Ms A] passed away. Prior to that he and [Ms A] had been living together in [City 1]. They lived together from 2009 to 2015 except for two periods of three months when he moved out. [Child 1] and his son with [Ms A] lived with them. Mr Rumball told the tribunal that he was not sure but that he believed the house they lived in was rented by [Ms A] with the lease being in her name. They each paid for half of everything including half of the household bills and half of all other living expenses. They shared the children’s expenses. He worked full-time. [Ms A] worked a little but essentially she was a full-time stay-at-home mother. They did not own any property or household goods jointly. They each bought what they needed. He let [Ms A] keep everything when they separated. They did not hold a joint bank account although they each had access to the other’s bank accounts. They did not have joint debts, joint credit cards or joint store cards. They each had cars. He bought the cars which were in his name. They each paid for the costs of fuel and motor vehicle repairs for the car they used.

9. Mr Rumball told the tribunal that he and [Ms A] had become engaged. They were engaged for over four years. They never married. He referred to [Ms A] as his fiancée. They broke off their engagement when he moved out. After he moved out he had regular contact with [Child 1] and his son with [Ms A]. The children were with him every second weekend. He also had them with him full-time from November 2015 to February 2016 because [Ms A] was in hospital from November 2015 until mid-January 2016. He also had the children every school holidays until July 2017. His son with [Ms A] moved in with him full-time from 20 July 2017. Around that time he spoke to [Ms A] about where [Child 1] would live after she passed away. [Ms A] wanted [Child 1] to live with him and [Child 1]’s brother. [Child 1] moved in with him on 3 August 2017. She has lived with him since then except for the September 2017 school holidays when she was with Mr Bowdler.

10. Mr Rumball gave inconsistent evidence at the hearing about when he separated from [Ms A]. Mr Rumball’s oral evidence concerning the time of separation did not correspond with information he provided to the Department in October 2017 in response to Mr Bowdler’s objection or with the information that Centrelink had recorded. Mr Rumball told the tribunal that it was difficult for him to recall when things occurred as a lot had happened. He has not been the one who dealt with Centrelink about FTB for the children. The only time he had done so was when [Ms A] was in hospital from November 2015 until January 2016. The rest of the time [Ms A] dealt with Centrelink. The tribunal noted that Mr Rumball acknowledged that [Ms A] was in a relationship with and became partnered to someone else after he separated from her. She moved out of the house where they (Mr Rumball and [Ms A]) had lived around the beginning of 2017 and she moved in with the other person and possibly in with the other person’s mother.

11. The tribunal had no reason to doubt Mr Rumball’s evidence that the circumstances that surrounded [Ms A]’s passing were very difficult for him. The tribunal accepted that this impacted on Mr Rumball’s recollection of the events. However, given the inconsistencies in the evidence Mr Rumball presented, the tribunal had concerns that the account that he gave at the hearing was accurate. The tribunal noted that Mr Rumball did not claim at any time to have been in a de facto relationship with [Ms A] when he made the application for child support for [Child 1] in August 2017. The evidence that was available in relation to the circumstances of the relationship between Mr Rumball and [Ms A] was limited. The tribunal accepted from Mr Rumball’s description of their relationship the relationship was somewhat turbulent. However, in the tribunal’s view the oral evidence that Mr Rumball gave at the hearing was consistent with them having been in a de facto relationship with each other for several years. After noting Mr Bowdler’s acknowledgement that he had no direct knowledge of the relationship between Mr Rumball and [Ms A], the tribunal, on balance, preferred the evidence that Mr Rumball gave on affirmation at the hearing of the circumstances of his relationship with [Ms A]. After examining the evidence before it carefully including the evidence in respect of the matters set out in subsection 4AA(2) of the Family Law Act the tribunal was satisfied that the evidence was consistent with Mr Rumball and [Ms A] having had a long-standing de facto relationship with each other although they were not in a de facto relationship with each other at the time when Mr Rumball made his application.

1. The tribunal finds based on the interim accommodation order made on 26 July 2017 that [Child 1] was placed in Mr Rumball’s care from that date. Written undertakings that Mr Bowdler and Mr Rumball provided in Children’s Court of [State 1]  proceedings on 29 August 2017 were consistent with [Child 1] remaining in Mr Rumball’s care from that time except for the September/October school holiday period in 2017 which she spent with Mr Bowdler. The tribunal noted that Mr Bowdler raised concerns about the suitability of Mr Rumball providing care for [Child 1] and that Mr Bowdler contended that Mr Rumball did not provide the level of care that he claimed to provide for [Child 1]. However, Mr Bowdler did not claim to have direct knowledge or to have directly observed the relationship between [Child 1] and Mr Rumball. While the tribunal accepted that it was likely that the extent of time that [Child 1] spent with Mr Rumball was affected by the turbulence that Mr Rumball acknowledged was present in his relationship with [Ms A] the tribunal accepted based on the oral evidence that Mr Rumball gave on affirmation at the hearing that [Child 1] resided with him and [Ms A] when they were in a de facto relationship and that Mr Rumball continued to maintain regular contact with and provide care for [Child 1] regularly after his de facto relationship with [Ms A] ended.

2. Based on the findings set out above the tribunal was satisfied that Mr Rumball and [Ms A] had been in a de facto relationship with each other prior to Mr Rumball applying for child support for [Child 1] in August 2017. The tribunal was also satisfied that Mr Rumball treated [Child 1] as a member of the family he formed with [Ms A] when he was [Ms A]’s de facto partner and that after their de facto relationship ended the level of contact that Mr Rumball had with [Child 1] and the level of care that he provided for her was consistent with him treating [Child 1] as a member of the family he formed with [Ms A]. Therefore, the tribunal concluded that Mr Rumball was [Child 1]’s step-parent as defined in subsection 4(1) of the Family Law Act when he applied for child support for [Child 1]. As the tribunal was satisfied that Mr Rumball was [Child 1]’s step-parent he was her relative as defined in subsection 4(1) of the Family Law Act. It follows that Mr Rumball was a relative of [Child 1] at the time when he applied for child support for her. Therefore, Mr Rumball met the requirements set out in section 26A of the Assessment Act in order for him to apply for child support for [Child 1] as a non-parent carer.

3. The tribunal then considered whether Mr Rumball was an eligible carer for the purposes of section 25A of the Assessment Act. As already discussed the tribunal was satisfied that the evidence is established that Mr Rumball cared for [Child 1] at the time of his application. It was not at issue that Mr Rumball was neither a parent nor a legal guardian of [Child 1] at the time of the application. Therefore the requirements set out in paragraphs (a) and (b) of subsection 7B(2) of the Assessment Act for Mr Rumball to be an eligible carer in relation to [Child 1] were met. However, as already discussed the requirements of paragraph 7B(2)(c) must also be met. These requirements are that the parent or legal guardian of the child (in this case Mr Bowdler) has indicated that they do not consent to the other person (in this case Mr Rumball) caring for the child and that it would not be unreasonable in the circumstances for a parent or legal guardian of the child to care for a child. Based on the available evidence the tribunal was satisfied that relevantly to this review the only person who was a parent or legal guardian of [Child 1] was Mr Bowdler. The tribunal accepted based on the clear and consistent oral evidence that Mr Bowdler presented that he did not consent to Mr Rumball caring for [Child 1].

4. The evidence that Mr Bowdler gave at the hearing was consistent with him having provided limited care for [Child 1] and with him also having limited contact with [Child 1] for several years. Mr Bowdler told the tribunal that most recently he had regular care and contact with [Child 1] in 2009. He had been in [a specified workplace] and was posted interstate from 2003 to 2009. At the end of 2009 he moved to [City 1] with the intention of establishing a relationship with [Child 1] and [Ms A]. He saw [Child 1] regularly and had care of her every second weekend or sometimes every weekend. That remained the situation for around a year but the relationship between him and [Ms A] deteriorated. He moved back interstate for work in 2011. Up until the end of 2016 he only had sporadic contact with [Child 1]. They were mainly in contact through telephone calls. The last time he saw her might have been in 2015 or in 2016. Mr Bowdler told the tribunal that [Ms A]’s actions were the reason why he was only able to have infrequent contact with [Child 1]. His mother lived in [State 1] . She tried to see [Child 1] at school but she was not able to maintain contact with her. Mr Rumball agreed that Mr Bowdler was not in contact with [Child 1] often. Mr Rumball told the tribunal that as far as he was aware that Mr Bowdler had only spoken to [Child 1] twice prior to [Ms A] passing away. Mr Rumball disagreed that [Ms A] had prevented Mr Bowdler from having contact with [Child 1]. Mr Rumball told the tribunal that the reason why Mr Bowdler did not contact [Child 1] was due to Mr Bowdler’s commitment to work.

5. Mr Bowdler told the tribunal that he had come to [City 1] for the court proceedings on 29 August 2017. He spoke to [Child 1] about living with him interstate but she wanted to stay and finish school in [State 1] and to stay with her brother ( [Ms A]’s and Mr Rumball’s child). The DHHS recommended that [Child 1] should not leave [State 1]  because it would be too traumatic for her to leave due to the recent passing of [Ms A]. When he spoke to the DHHS about the possibility of [Child 1] living in [State 1] with his mother he was advised against this as the DHHS advised that it would be too traumatic for [Child 1] to leave her brother or to live anywhere else other than with Mr Rumball. Mr Bowdler acknowledged that he undertook to the Court not to attempt to remove [Child 1] from Mr Rumball’s care until the end of January 2018. He told the tribunal that he did so reluctantly and from concern for [Child 1].

6. The tribunal finds based on the consistent evidence that Mr Bowdler and Mr Rumball presented that Mr Bowdler had infrequent and irregular contact with [Child 1] from 2011 until the time when Mr Rumball made the application for child support for [Child 1]. Based on the oral evidence that Mr Bowdler and Mr Rumball gave on affirmation the tribunal was satisfied that prior to the application being made, a substantial period of time had elapsed since Mr Bowdler provided care for [Child 1]. Based on the available evidence and having regard to the policy set out in section 2.1.1 of the Guide the tribunal was satisfied that when Mr Rumball made the application it was unreasonable in the circumstances for him to care for [Child 1] on the basis that there was extreme family breakdown by the time Mr Rumball made the application. Therefore, the tribunal concluded that when he made the application on 14 August 2017 Mr Rumball met the requirements as an eligible carer in relation to [Child 1] under section 7B of the Assessment Act. The tribunal noted that this conclusion is consistent with the policy set out at section 2.1.1 of the Guide in relation to the effect of a court order about the child’s care. The policy provides that the Department will generally not look beyond a court order where a court has ordered that the child reside with the non-parent carer.

7. Based on the available evidence the tribunal was satisfied that the other requirements set out in section 25A of the Assessment Act for an application to be made for administrative assessment of child support for a child by a non-parent carer were met in relation to Mr Rumball’s application. Therefore, the tribunal concluded that the decision that was made on 22 August 2017 to accept Mr Rumball’s application for administrative assessment of child support for [Child 1] was correct.

8. It was clear that Mr Bowdler was distressed and aggrieved by what he perceived as the unfairness of the acceptance of Mr Rumball’s application in circumstances where he was [Child 1]’s father and he did not consent to [Child 1] being in Mr Rumball’s care. The matters Mr Bowdler raised are important concerns. However, as explained at the hearing the tribunal cannot change the law and in this review the tribunal is bound to apply the law as in force at the time when the decision under review was made.

DECISION

The decision under review is affirmed.