Forster and Child Support Registrar (Child support)

[2022] AATA 1552

Forster and Child Support Registrar (Child support) [2022] AATA 1552 (31 March 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC023004

APPLICANT:  Ms Forster

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  31 March 2022

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides there was no change in the level of care for [Child 1] from 4 August 2021.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – 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 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

1. This review is about a change to the percentage of care determinations for Ms Forster and [Mr A] in respect of their child [Child 1] (born October 2004).  There has been a child support assessment in place since 3 November 2006.

2. From 1 July 2008 the child support assessment reflected Ms Forster as having 100 per cent care and [Mr A] as having 0 per cent care of [Child 1].

3. On 9 November 2021 [Mr A] advised the Child Support Agency of a change to the care arrangements stating that from around 8 November 2021 [Child 1] was no longer living with Ms Forster.

4. On 30 November 2021 the Child Support Agency made the decision to reflect that Ms Forster provides 0 per cent care and [Mr A] provides 0 per cent care of [Child 1] from 4 August 2021.

5. On 1 December 2021 Ms Forster objected to this decision and on 16 December 2021 the Child Support Agency disallowed the objection (the objection decision).

6. On 22 December 2021 Ms Forster applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 31 March 2022.  Ms Forster gave evidence on affirmation by conference telephone.  The Tribunal wrote to [Mr A] on 14 January 2022 inviting him to be added as a party to the application.  On 1 February 2022 the Tribunal discussed the application with [Mr A].  [Mr A] told the Tribunal he had given all relevant information to the Child Support Agency and had nothing further to add.  [Mr A] said he did not wish to be a party to the application.  The Child Support Agency provided the Tribunal and Ms Forster with papers relevant to the matter (96 pages).

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. The Child Support Agency makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent.  The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, the Child Support Agency determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (section 50 of the Act).  In other words, the Child Support Agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter.  The task of the Tribunal on review is the same.

4. The Child Support Agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make new care determinations to take account of a care change.

5. The issues which arise in this case are:

   ·     has there been a change in the pattern of care for [Child 1] which requires the existing percentages of care to be revoked and new care determinations made and; if so,

   ·     from what date should the new percentage of care determinations take effect?

CONSIDERATION

1. Ms Forster told the Tribunal there were no formal care arrangements in place relating to the care of [Child 1].  Ms Forster said [Child 1] had been living at home with her in [Town 1] and had nothing to do with his father, [Mr A], since at least 2008.

2. Ms Forster said in 2021 [Child 1] began having increasing problems with computer addiction and this was impacting his progress at school.  Ms Forster explained that on the occasions she tried to discuss the matter with [Child 1], or discipline him, [Child 1] would sometimes stay with friends.  Ms Forster said there were some negative influences in [Town 1] and at one point the police became involved, however, there was no requirement at any stage for an apprehended violence order.  She said COVID-related restrictions did not help.

3. Ms Forster said at some point in mid-2021 she made arrangements for [Child 1] to stay with his adult sister, [Sister A], in [City 1, interstate] in an attempt to de-escalate the situation.  Ms Forster stressed this was only ever meant to be a temporary measure.  Ms Forster said she started sending [Sister A] money to meet any additional costs and kept in touch with [Child 1] regularly.

4. Ms Forster said in August 2021 [Child 1] then took it upon himself to leave his sister’s house and ended up in youth accommodation in [City 1].  Ms Forster said due to restrictions associated with the coronavirus pandemic she was unable to travel to [City 1] but remained in contact with [Child 1].  Ms Forster said she began transferring funds to [Child 1] to help support him but did so in incremental amounts so he did not spend it all at once.  Ms Forster said the financial support continued well into November as she wanted to ensure [Child 1] had enough money for food and general living expenses.  Ms Forster said at that point she was still hoping [Child 1] might return to live with his sister.

5. Ms Forster told the Tribunal during this time she was still caring for [Child 1] and trying to help him get through what was a difficult period for them both.  Ms Forster said she even tried to arrange for [Child 1] to attend a mental health support group called [Agency 1] but he refused.

6. The Tribunal notes in evidence provided by Ms Forster to the Child Support Agency that on 2 July 2021 and 14 July 2021 she transferred amounts of $700 and $150 to [Sister A].  The Tribunal also notes in evidence a further 14 transfers made by Ms Forster to [Child 1] between 3 August 2021 and 1 December 2021 with amounts ranging from $50 to $700.

7. Although [Mr A] did not participate in the hearing the Tribunal notes he discussed the care of [Child 1] with a child support officer on 7 December 2021.  During this conversation [Mr A] is recorded as stating that he was made aware [Child 1] was kicked out of the house and an AVO was placed on him.  [Mr A] also said that due to the AVO [Child 1] could not return home.

8. Ms Forster told the Tribunal she was aware that [Child 1] may have applied for some form of youth allowance when he was staying with his sister in [City 1].  Ms Forster said she nonetheless continued to transfer money to [Child 1] as he needed the support.

9. The Tribunal notes the objection decision states that as at 6 August 2021 [Child 1] had a different address to Ms Forster.  The objection decision also states that [Child 1] was granted an independent benefit on 2 February 2021 and lodged another such claim on 4 August 2021, however, this was not granted.

10. The term “care” is not defined in the legislation.  The Federal Magistrates Court of Australia, in Polec & Staker & Anor,[1] discusses the meaning of “care” in detail including the factors that should be taken into account when deciding if a person is providing care for a child. These are:

    ·      to what extent does the person meet 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 does the person make arrangements for others to meet the needs of the child;

    ·      to what extent does the person pay for the costs of meeting the needs of the child;

    ·      to what extent does the person otherwise provide financial support to the child;

    ·      to what extent does the child provide for his or her own needs or have those needs met from another source;

    ·      to what extent is the child financially independent or financially supported from another source?

    [1] Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959

11. Although [Child 1] was living with his sister from mid-2021 and then in youth accommodation it is the view of the Tribunal that Ms Forster continued to support him financially and was responsible for his health and emotional wellbeing.  Ms Forster transferred funds to [Sister A], [Child 1’s] sister, while [Child 1] was living with her in [City 1] and then made numerous further transfers direct to [Child 1] for a period of approximately four months, at least, to assist him with his living costs.

12. It appears that [Child 1] may have been in receipt of an independent benefit at some point, however, Ms Forster continued to support [Child 1] financially in order to supplement this government allowance.

13. The Child Support Guide, at 2.2.1, also provides some guidance in relation to older children living away from home.  It states:

    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.

14. Although not bound by policy as set out in the Child Support 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.

15. In light of the evidence provided the Tribunal finds that Ms Forster continued to provide ongoing care for [Child 1] even though he was living in the home of a third party and then in youth accommodation.  This ongoing care continued until at least 1 December 2021 when the original decision was made by the Child Support Agency.

16. The Tribunal is not satisfied there has been a change to the pattern of care for [Child 1] as advised by [Mr A] on 9 November 2021.  There is, therefore, no reason for the existing percentage of care determinations to be revoked.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides there was no change in the level of care for [Child 1] from 4 August 2021.