Fischer and Tonks (Child support)

[2018] AATA 4151

Fischer and Tonks (Child support) [2018] AATA 4151 (18 September 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/MC014453

APPLICANT:  Mr Fischer

OTHER PARTIES:  Child Support Registrar

Ms Tonks

TRIBUNAL:Member W Kennedy

DECISION DATE:  18 September 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – acceptance of an application for an administrative assessment from a non-parent carer – whether the application should have been accepted – non-parent is an eligible carer – application 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 application concerns the registration of a child support assessment in respect of [Child 1], who was born in 2002.  The applicant, Mr Fischer, is the father of [Child 1].  [Child 1] is in the care of the second party, Ms Tonks.

2. On 24 May 2017, the [relevant state agency] placed [Child 1] in the care of Ms Tonks.  On 8 December 2017 Ms Tonks applied to the Child Support Agency of the Department of Human Services (the Department) to have an administrative assessment of child support made.  In making her application Ms Tonks advised the Department that she was a non-parent carer and had 100% care of [Child 1].

3. On 10 January 2018, the Department decided to accept Ms Tonks’s application with effect from 8 December 2017 and determined that Ms Tonks had 100% care of [Child 1]. 

4. On 26 March 2018, Mr Fischer’s representative advised the Department of Mr Fischer’s intention to object to the decision of 10 January 2018.  A completed objection form together with an application for an extension of time was subsequently received by the Department.  On 16 April 2018, the Department decided to grant an extension of time to allow Mr Fischer’s objection to be heard.  On 16 June 2018, a Department objections officer decided to disallow Mr Fischer’s objection. 

5. On 28 June 2018, Mr Fischer applied to this Tribunal for a review of that decision.  The Tribunal considered the application and decided the matter on 18 September 2018.  In considering the application, the Tribunal took into account the documentary material provided by the Department (folios 1 to 106).  Copies of these documents were provided to both parties prior to the hearing.  Mr Fischer attended the hearing by telephone and gave his evidence under an affirmation.  Mr Fischer was represented by [Representative A] of counsel.  Ms Tonks attended the hearing by telephone and gave her evidence under an affirmation.  The Child Support Registrar did not attend the hearing and was not represented.

ISSUES

1. In this case the Tribunal has to decide whether to register a child support assessment in favour of Ms Tonks in respect of [Child 1].

CONSIDERATION

1. The law that applies to this application is found in the Child Support (Assessment) Act 1989 (the Act).

2. Ms Tonks lodged an application with the Department under section 25A of the Act:

   Persons who may apply--non-parent carers

   A person who is not a parent of a child (the applicant) may apply to the Registrar under this         section for administrative assessment of child support for the child if:

   (a)            the applicant is an eligible carer of the child; and

   (b)            one of the following also applies:

   (i)       the applicant applies for both parents to be assessed in respect of the    costs of the child;

   . . .

(c)            the applicant is not living with either parent as the partner of that parent on a    genuine domestic basis (whether or not legally married to that parent); and

(d)            the applicant complies with any applicable requirements of section 26 (dealing                    with joint care situations) and section 26A (dealing with children cared for under   child welfare laws); and

(e)            if a parent of the child who is to be assessed in respect of the costs of the child is              not a resident of Australia on the day on which the application is made--the   application meets the requirements of sections 29A and 29B.

1. The Tribunal first considered whether [Child 1] is a child covered by the legislation.  Subsection 24(1) of the Act provides that an application may be made in respect of a child who is an eligible child, who is under 18, who is not a member of a couple and who is present in Australia.  At the hearing, [Representative A] said that Mr Fischer believed that [Child 1] had been living in a domestic relationship with Ms Tonks’s son, the implication being that she may be a member of a couple.  That she was in a domestic relationship has previously been denied and at the hearing Mr Fischer acknowledged that he has no evidence of a domestic relationship.  In the absence of contrary evidence and in light of the surrounding circumstances the Tribunal finds that [Child 1] is an eligible child under Part 3 of the Act, is not a member of a couple, is under 18 years of age and is present in Australia.  She is therefore a child in respect of whom an application for child support may be made.

10.  The Tribunal next considered whether Ms Tonks is an eligible carer of [Child 1].  The meaning of eligible carer is found in section 7B of the Act:

Meaning 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.

11.  At the hearing the parties did not dispute that Ms Tonks has 100% care of [Child 1], thus satisfying subsection 7B(1) of the Act.  However Mr Fischer has previously said that he did not consent to Ms Tonks caring for [Child 1].  Thus, in order to satisfy subsection 7B(2) of the Act, it must be found that it would be unreasonable in the circumstances for a parent or legal guardian of [Child 1] to care for her.  The Tribunal has before it a report from a Departmental social worker in which it is stated that it is unreasonable for [Child 1] to live with either parent (folio 36).  This would seem to be supported both by the [relevant state agency], which placed [Child 1] in Ms Tonks’s care (folio 17), and also by the [relevant court], which made an order that [Child 1] be placed in Ms Tonks’s care (folio 87).  The Tribunal finds that it would be unreasonable for Mr Fischer or [Child 1’s] mother to care for her, thus satisfying subsection 7B(2) of the Act.

12.   As Ms Tonks is an eligible carer she satisfies subsection 25A(a) of the Act.  Ms Tonks applied for both parents to be assessed and is not living with either of [Child 1’s] parents thus satisfying subsections 25A(b) and (c) of the Act.  Subsections 25A(d) and (e) of the Act are not applicable.

13.  As section 25A of the Act is satisfied, under sections 29 and 30 of the Act the Registrar must accept Ms Tonks’s application.

14.  At the hearing [Representative A] said that Mr Fischer did not object so much to the registration of the child support assessment as to the quantum of the assessment.  The Tribunal has no relevant power as to the quantum of the assessment because that calculation is not part of the decision before the Tribunal.

DECISION

The decision under review is affirmed.