Emmet and McSorley (Child support)

Emmet and McSorley (Child support) [2023] AATA 831 (24 February 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/SC024927
APPLICANT:  Ms Emmet
OTHER PARTIES:  Child Support Registrar
Mr McSorley

TRIBUNAL:Senior Member S De Bono
DECISION DATE: 24 February 2023
DECISION:

The tribunal sets aside the decision under review and, in substitution, decides from the date of registration of the child support case for [Child 1], Mr McSorley is found to have 86% care and Ms Emmet is found to have 14% care.

(This means the application for review is partly successful.)

CATCHWORDS
CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – 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 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

Ms Emmet and Mr McSorley are the separated parents of [Child 1]. The child support case was registered on 12 July 2022, Mr McSorley reported he had 100% care of [Child 1] from 15 April 2022 notified on 12 July 2022. This meant [Child 1] was determined to be in Mr McSorley’s 100% care from 12 July 2022. Mr McSorley elected for child support to be collected by the Child Support Agency (Child Support). On 23 August 2022 Child Support accepted Mr McSorley’s application for registration.
On 1 September 2022 Ms Emmet lodged an objection to this decision. On 27 October 2022 an objections officer disallowed Ms Emmet’s objection.
On 28 October 2022 Ms Emmet applied to the Administrative Appeals Tribunal (the tribunal) for an independent review of this decision. On 21 February 2023 Ms Emmet and Mr McSorley participated in a telephone hearing and both gave evidence under affirmation. The tribunal had before it a bundle of documents (243 pages – referred to as the hearing papers) which had been sent to Ms Emmet and Mr McSorley prior to the hearing. Mr McSorley provided additional documents after the hearing (B1–B32). Relevant aspects of the material and evidence will be referred to in the tribunal’s consideration of the issues to be decided.

ISSUES

The issues which arise in this case are:
· What is the care percentage applicable to each parent from the date of registration?

LAW AND CONSIDERATION

The legislation relevant to this review is contained in the Child Support (Assessment) Act1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Act). Also relevant is the Child Support Guide (the Guide) which provides policy and guidelines for the application of the relevant legislation in order to promote consistency and transparency in decision-making. While the tribunal is not bound by these guidelines it will follow them unless there is a cogent reason to do otherwise as found in Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[1]
[1] [1979] AATA 179.
The Guide at 1.1.1 provides a background to the establishment of the child support scheme. The scheme was established in 1988 to assist separated parents to take responsibility for the financial support for their children. The scheme involves the assessment of child support in accordance with a formula as well as the collection and enforcement of child support assessments, child support agreements and court orders.
Section 3 of the Assessment Act provides that parents have a primary duty to maintain their child. Subsection 4(1) of the Assessment Act provides that the principal object of the Assessment Act is to ensure children receive a proper level of financial support from their parents. Subsection 4(2) states:
(2) Particular objects of this Act include ensuring:
(a)that the level of financial support to be provided by parents for their children is determined according to their capacity to provide financial support and, in particular, that parents with a like capacity to provide financial support for their children should provide like amounts of financial support; and
(b) that the level of financial support to be provided by parents for their children should be determined in accordance with the costs of the children; and
(c)that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings; and
(d) that children share in changes in the standard of living of both their parents, whether or not they are living with both or either of them; and
(e) that Australia is in a position to give effect to its obligations under international agreements or arrangements relating to maintenance obligations arising from family relationship, parentage or marriage.
(3)It is the intention of the Parliament that this Act should be construed, to the greatest extent consistent with the attainment of its objects:
(a) to permit parents to make private arrangements for the financial support of their children; and
(b) to limit interferences with the privacy of persons.
In accordance with section 25 of the Assessment Act a parent may apply to the Registrar for an administrative assessment of child support. Mr McSorley applied to Child Support for an administrative assessment of child support for [Child 1] by lodging an application on 12 July 2022. Section 30 of the Assessment Act provides that if the Registrar is satisfied that an application has been properly made for an administrative assessment of child support the Registrar must accept the application.
Section 7B of the Assessment Act provides that an eligible carer is a person who has at least shared care of the child. A person has shared care of a child if they have a care percentage of at least 35% care of a child.

What is the care percentage applicable to each parent from the date of registration?

Percentage of care determinations are made under section 49 and/or section 50 of the Assessment Act. Section 49 of the Assessment Act provides authority to make a determination in circumstances where a parent has no care of the child. Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child during the relevant care period, the Registrar must determine that person’s percentage of care for the child during the care period.
The Assessment Act provides that the care percentage must be determined for a “care period” which is effectively defined as “…such period…as the Registrar considers to be appropriate having regard to all of the circumstances”. Usually (but not necessarily) the care period will be a 12-month period starting from the date the care of the children changed and reflect the pattern of care that a person has had, or is likely to have, during the care period.
The pattern of care can be established either according to a “care arrangement” (such as court orders or a parenting plan) or the actual care that is taking place. In this case there are court orders made on 15 October 2019 which provide that [Child 1] is to live with Ms Emmet and spent time with Mr McSorley as “agreed between the child and the father”.[2]
[2] Page 50 of subsection 37(1) of the Administrative Tribunal Act 1975: Statement and Documents referred to as the Hearing Papers.
Child Support accepted Mr McSorley’s application and made a care determination in accordance with section 49 of the Assessment Act, determining that Mr McSorley had 100% care of [Child 1] from 12 July 2022.
Ms Emmet disagreed with the decision of Child Support submitting that she agreed [Child 1] had left her care in around May 2022. This occurred because [Child 1] as an older teenager (she turned 17 years old on [date] July 2022) had decided that she no longer wanted to “abide by the rules of the household” and her behaviour according to Ms Emmet was becoming increasingly difficult.
Ms Emmet initially stated the care determination should be 0% to both parents because [Child 1] had ceased to live with her and was not living with Mr McSorley. At the hearing Ms Emmet said the care determination should be a shared care determination because she was still supporting [Child 1] and she was providing financial support to her as was Mr McSorley, but that [Child 1] was living with neither parent. Ms Emmet said she was still paying for private health insurance for [Child 1] and for her mobile phone.
Mr McSorley said when [Child 1] left her mother’s house she went to stay with the family of a friend whose name is [Mr A]. Mr McSorley said [Mr A]’s Mum is a psychologist and they set up a room for [Child 1]. Ms Emmet said [Mr A] was [Child 1]’s boyfriend and that she is in a de facto relationship with [Mr A], but Mr McSorley disagreed that the relationship between [Child 1] and [Mr A] should be considered as such. Contained in the hearing papers is a letter from Ms [B], [Mr A]’s Mum and she also disputes this characterisation of [Mr A] and [Child 1]’s relationship.
Mr McSorley said he has had ongoing contact with [Ms B] and had made the decision that [Child 1] remain living with [Ms B] and attend [a] College. Mr McSorley said he is in regular contact with [Ms B] and he has been paying for [Child 1]’s school fees, board with [Ms B], her therapy, medical and counselling costs. Mr McSorley said following discussions with [Child 1] as well as [Ms B] the decision was made that [Child 1] would continue to stay with [Ms B] and [Mr A] rather than relocate to where he is living.
Ms Emmet said [Child 1] met [Mr A] at [school] and from this time they have been in a relationship. Ms Emmet said [Child 1] left her home in April 2022 and has not returned.
Mr McSorley said he contacts [Child 1] regularly, usually via [social media] and every month or so he drives down to see her, it is about an eight hour drive from his home. He has regular contact with [Ms B] and he said he provides [Child 1]’s day-to-day financial and emotional needs.
In determining whether care exists the Guide at 2.2.1 provides the following:
The Assessment Act does not define the term ‘ongoing daily care’, however where there is doubt, the Registrar will take into account a number of factors in determining whether a person cares for a child.
In most cases, it will be relatively clear whether and to what extent a person is caring for a child. However, where there is doubt, the Registrar will consider whichever of the following are relevant to the particular case:
·     To what extent the person has control of the child, including having overall responsibility for the child and making
o    major decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and
o    arrangements for others to meet the needs of the child (delegated care).
·     To what extent the person meets the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra-curricular activities.
·To what extent the person pays for the costs of meeting the needs of the child.
·To what extent the person otherwise provides financial support for the child.
·To what extent the child provides for his or her own needs or has those needs met from another source.
·To what extent the child is financially independent or financially supported from another source.
The Guide provides some guidance about considerations for older children living away from home:
Generally, older children who live independently and separately from their parents or carers provide for many of their own needs. This may include meeting their own ongoing daily needs (such as meal preparation, transport, socialising, etc.) as well as making their own decisions about their daily activities, schooling and health issues. Therefore, it may be difficult to establish whether a person provides care for an older child who lives separately from that person.
Where a person provides substantial financial support to an older child living away from home, the Registrar will generally consider that financial support as an indicator that the person is continuing to provide care for the child. The support can be in relation to daily costs such as food, accommodation and transport, and/or longer term costs such as school fees, paying for airfares home for holidays, clothing, health and dental care, etc.
While financial support is often a key factor in determining whether a person cares for a child who lives away from home, it will not always be the sole determinant. In cases where the financial support provided is limited, and other factors exist that suggest that the person continues to care for the child, the Registrar will consider whether the person is actively involved in major decisions relating to the child. For example, decisions relating to the child's health, schooling, relationships, career, etc. may be indicators that the person continues to provide care for the child.
While the Guide suggests that financial support is often a key factor in determining whether a person cares for a child who lives away from home it is not always the sole determinant.
Ms Emmet said Mr McSorley has not been involved in [Child 1]’s care since separation and she said he has not provided financial support in relation to [Child 1]. In response Mr McSorley said that he has been ‘alienated’ from [Child 1] since he and Ms Emmet separated and was prevented by Ms Emmet from having contact with [Child 1]. Mr McSorley said he paid the sum of $40,000 as part of the binding financial agreement between himself and Ms Emmet which discharged his child support liability.[3]
[3] Page 152 of the hearing papers.
The most probative evidence in relation to who is providing ongoing care to [Child 1] is found in the letter written by [Ms B]. [Ms B] states in this letter the following:
[Child 1]’s biological father Mr McSorley contacted me while we were still in QLD and wished for us all to discover what was going on and the best path forward for [Child 1] and I agreed [Child 1] could reside in our spare bedroom until she finished school. I was prepared to commence getting the supports she seemed to desperately required and Mr McSorley made every effort to ensure that we had family, Schooling, financial plans in place to financially support [Child 1], her recovery, her academic career, social connections, self-care and family connections. I did contact Ms Emmet one last time about everything going on and never heard back….
We are very happy to provide a warm loving home for [Child 1], however, long term this would not be feasible without the financial support from Mr McSorley…[4]
[4] This letter is contained in the hearing papers but the page number is unable to be ascertained due to redactions.
Evidence before the tribunal shows Mr McSorley paid the school fees for [Child 1] for part of Terms 2 and 3, but [Child 1] ceased schooling during Term 3. The tribunal accepts Mr McSorley paid these fees. The tribunal also accepts from the evidence before it that Mr McSorley has been paying for [Child 1]’s board with [Ms B]. Mr McSorley also provided evidence from his bank statements and receipts that he is also paying for [Child 1]’s therapy and counselling sessions.
Ms Emmet said [Child 1] commenced counselling for anxiety and depression prior to leaving home and she funded this. Ms Emmet said she also set [Child 1] up with a bank account and has been depositing money into this account.[5] The tribunal notes that Ms Emmet has deposited funds into [Child 1]’s bank account to assist [Child 1] with day-to-day living expenses, although in lesser amounts than have been provided by Mr McSorley.
[5] Pages 186–191 of the hearing papers.
Ms Emmet said she also stays in contact with [Child 1] and paid for the cost of the TAFE course which commenced on 11 October [2022]. According to Mr McSorley, [Child 1] has since ceased this course.
The tribunal accepts that [Child 1] left her Mum’s house in April 2022. The tribunal also accepts Ms Emmet’s evidence that she was still providing some financial support to [Child 1] and she was still contacting [Child 1] and trying to support her, but given the circumstances [Child 1] was not always receptive when Ms Emmet tried to do this. The tribunal also accepts that Mr McSorley has been providing the majority of financial and some emotional support to [Child 1] since she relocated to live with [Ms B]. But it is also evident from the information provided by [Ms B] that she and her husband are also providing this support to [Child 1].
Given that both parents were providing support, although Ms Emmet was providing support to a lesser degree due to the reasons outlined, the tribunal on balance is satisfied that Ms Emmet’s care was not 0%.
The tribunal acknowledges that parenting an older teenage child can have its challenges as their teenager forges a path to independence and in doing so tests the boundaries. In balancing the circumstances provided by both parents surrounding [Child 1]’s current living situation at the time of Mr McSorley’s application for child support, the tribunal is satisfied based on the evidence from both parents that from the date of registration of the child support case for [Child 1] made on 12 July 2022 that a care determination of 86% care to Mr McSorley and 14% care to Ms Emmet is the preferable decision when weighing all the evidence provided by the parents and taking into account the fact that [Child 1] is not residing with either parent and both are providing support to her in differing degrees. The tribunal’s care determination reflects this finding.

DECISION

(This means the application for review is partly successful.)

[2023] AATA 831

24 February 2023

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Judicial Review

Statutory Construction

Remedies