Capron and Fielden (Child support)
[2021] AATA 4496
•19 October 2021
Capron and Fielden (Child support) [2021] AATA 4496 (19 October 2021)
DIVISION:Social Services & Child Support Division
REVIEW NUMBER: 2021/SC021700
APPLICANT: Mr Capron
OTHER PARTIES: Child Support Registrar
Ms Fielden
TRIBUNAL:Member M Douglas
DECISION DATE: 19 October 2021
DECISION:
The decision under review is affirmed.
CATCHWORDS
CHILD SUPPORT – departure determination – whether capacity of parent to provide financial support for child significantly reduced because of commitments to support other child parent has a duty to maintain – no legal duty to maintain step grandchildren – no ground for departure established – decision under review affirmed
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
Mr Capron and Ms Fielden are the parents of [Child 1], in regards to whom the Child Support Registrar has issued administrative assessments of child support commencing 7 January 2007.
An assessment of child support is made in accordance with the provisions of Part 5 of the Child Support (Assessment) Act1989 (the Act). Broadly speaking, those provisions prescribe a formula that applies to several variables to work out the amount of child support one parent must pay the other. If a parent believes there are special circumstances with respect to their case, the parent may apply to the Registrar under section 98B of the Act for a determination to depart from those provisions of the Act relating to the assessment of child support. The Registrar, who acts through staff employed at Services Australia - Child Support (Services Australia), describes such an application as a “change of assessment application”.
The Registrar, if satisfied that the criteria of subsection 98C(1) of the Act are met, can make one or more of the determinations listed in subsection 98S(1) to depart from the provisions of the Act relating to the assessment of child support. The first criterion specified in subsection 98C(1) is that one of the several grounds for departure listed in subsection 117(2) of the Act is established in the particular case.
On 12 November 2020 Services Australia received a change of assessment application from Mr Capron. The assessment then in force required Mr Capron to pay child support for [Child 1] at an annual rate of $15,100. That assessment was based on an adjusted taxable income for Mr Capron of $92,472 and an adjusted taxable income for Ms Fielden of $22,316.
Mr Capron’s purpose in making his change of assessment application was to have his child support obligation for [Child 1] decreased so as to take into account support he provides to his step grandchildren. [Judge A] of the [Federal Circuit Court of Australia] had ordered [in] September 2020 that those children were to reside with Mr Capron and his partner, being the children’s maternal grandmother.
On 4 February 2021, Services Australia refused to make a determination to change the child support assessment. This was because Services Australia was not satisfied a ground for departure had been established.
Mr Capron objected to that decision on 1 March 2021. On 21 May 2021, Services Australia disallowed his objection, precipitating Mr Capron’s application to the Tribunal.
The Tribunal conducted an audio hearing of Mr Capron’s application on 19 October 2021 using Microsoft Teams. Both Mr Capron and Ms Fielden participated and both gave affirmed oral evidence. No one from Services Australia participated, which is customary. Services Australia did however provide the Tribunal, in accordance with its obligation under sections 37 and 38AA of the Administrative Appeals Tribunal Act 1975, with the documents that it had that were relevant to its objection decision. Mr Capron also provided a bundle of documents to the Tribunal, in accordance with directions the Tribunal had made, which are marked A1–65. Ms Fielden also sent the Tribunal an email on 30 September 2021 setting out brief details about her income and expenditures, which is marked B1–3.
The Tribunal has had regard to those documents and to the oral evidence of Mr Capron and Ms Fielden.
CONSIDERATION
In his change of assessment application Mr Capron relied on the ground for departure provided in paragraph 117(2)(a)(iii)(B) of the Act, which reads as follows:
“that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of… the commitments of the parent necessary to enable the parent to support… any other child or another person the parent has a duty to maintain”.
Mr Capron’s evidence was that for several years there has been multiple issues regarding the safety of his partner’s grandchildren, and as a consequence the children had been residing with him and his partner. [In] September 2020, on the application of Mr Capron and his partner, [Judge A] of the Federal Circuit Court of Australia made an order, on an interim basis, that Mr Capron’s step grandchildren reside with him and his partner. Those children are now aged 1 and 10.
Mr Capron’s evidence was that Services Australia has made an assessment of child support for those children requiring the parents of the children to pay child support to him and his partner for the children. However, the child support that they receive from each parent is the minimum rate and, consequently, does not go near to covering the cost of the children’s support. As a consequence of that, Mr Capron draws upon his own resources to ensure the proper care of the children.
Mr Capron completed a Statement of Financial Circumstances on 21 June 2021, declaring the content to be complete and correct. His evidence at the hearing was that the content of that statement remains largely correct. He indicated in that that his partner does not receive any income. He also revealed that he receives a family tax benefit for the children, who now reside with him, of $126.70 a week. He declared receiving a weekly wage of $1,756.79, from which tax of $554.07 is deducted.
Mr Capron also declared in his Statement of Financial Circumstances that his weekly expenditures for his household total $1,453.92. The Tribunal’s observation of his list of expenditures reveals that they do not include any indulgences and indeed are modest.
Based on that evidence, the Tribunal is satisfied that Mr Capron’s capacity to provide financial support for [Child 1] is reduced because of the support he is now providing to his step grandchildren. The issue in this case is whether Mr Capron has a duty to maintain his step grandchildren.
The duty to which reference is made in paragraph 117(2)(a)(iii)(B) of the Act to maintain another child is a reference to a legal duty to maintain that other child.[1]
[1] Dwyer, AP v McGuire, JA (1993) FLC 92–420, approving Vic & Hartcher (1991) FLC 92–262; see also KB v SK [2005] FMCAF104 at [49]-[57].
The duty to maintain a child is not coterminous with the responsibility someone may have to provide a place for a child to live. In other words, the maintenance of a child is something more extensive than the provision of accommodation for a child.[2] In the Tribunal’s view that is made clear by section 64B of the Family LawAct 1975, and in particular subsection 64B(2) which lists the matters that may be dealt with in a parenting order and which lists as separate matters the maintenance of a child and where a child is to live. The parenting order that [Judge A] made [in] September 2020 deals only with where Mr Capron’s step grandchildren are to reside. That parenting order does not deal with the maintenance of those children, and consequently, in the Tribunal’s view Mr Capron does not derive from it a legal duty to maintain the children.
[2] Carnell v Carnell [2006] FMCAfam 476 at [56]
Saying that in somewhat different words, the matter of with whom a child shall reside is not coextensive or coterminous with what persons must maintain that child. An order that a child resides with certain persons does not create a legal obligation or a legal duty on those persons to maintain the child. In this case the order made by [Judge A] that Mr Capron’s step grandchildren temporarily live with him and their maternal grandmother does not impose a legal duty on Mr Capron to maintain the children, notwithstanding that, in a practical sense, he would need to support them because the children’s parents do not have the ability to maintain them. Given the circumstances outlined above, he clearly would have a moral obligation to support the children. A moral obligation is not, however, sufficient to meet the requirements of this ground for departure.
Consequently, the objection decision of Services Australia was the correct and preferable decision to have been made. Accordingly, the Tribunal affirms the decision.
DECISION
The decision under review is affirmed.
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