Hodson and Anstead (Child support)

[2025] ARTA 243

Hodson and Anstead (Child support) [2025] ARTA 243 (21 January 2025)

Applicant/s:  Mr Hodson

Respondent:  Child Support Registrar

Other Parties:  Mr Anstead

Tribunal Number:   2024/BC028262

Tribunal:Member M Baulch

Place:Brisbane

Date:21 January 2025

Decision:The Tribunal set aside the decision under review and in substitution decided that Mr Anstead is not an eligible carer in respect of [the child] pursuant to section 7B of the Child Support (Assessment) Act 1989 and his application for an administrative assessment of child support must be refused.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – eligible carer for purposes of child support – non-parent caring for child – claim of extreme family breakdown – differing reports from social workers – father prepared to provide care, but child does not want to live with him – degree of tension and possible conflict not extreme – not unreasonable to expect child to live with father – decision 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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

BACKGROUND

1. This application concerns a child support assessment relating to [the child], who was born in 2010.  Mr Hodson is [the child]’s father and [the child] lives with her sister and Mr Anstead.

2. On 10 January 2024, Mr Anstead applied to Services Australia – Child Support (Child Support) for an administrative assessment of child support in respect of [the child].  That request was considered, and it was decided, on 17 April 2024, that Mr Hodson was liable to pay child support to Mr Anstead in respect of [the child] from 10 January 2024 (the decision under review).

3. Mr Hodson objected to that decision and, on 4 July 2024, that objection was disallowed.  On 15 July 2024, Mr Hodson applied to the Administrative Appeals Tribunal (the AAT) seeking an independent review of Child Support’s decision.  On 14 October 2024, the AAT was abolished and replaced by the Administrative Review Tribunal (the Tribunal), which is now required to determine Mr Hodson’s application for review.

4. A hearing into the application for review was held by the Tribunal on 30 October 2024.  Mr Hodson discussed the application for review with the Tribunal by telephone and gave evidence under affirmation during the hearing.  Mr Hodson was represented by Mr Warren Rosen, from Rosen Lawyers.  Mr Anstead discussed the application for review with the Tribunal by telephone and gave sworn evidence during the hearing.  A representative of the Child Support Registrar (the Registrar) did not participate in the hearing.

5. On 30 October 2024, the Tribunal deferred determining the application for review to request additional information from Child Support. 

6. That material was received by the Tribunal, on 19 November 2024, accompanied by a request from Child Support for a non-disclosure order pursuant to section 70 of the Administrative Review Tribunal Act 2024 (the ART Act). On 20 November 2024, the Tribunal made a partial non-disclosure order, and on 16 December 2024, Child Support sent copies of the relevant documents, redacted in accordance with the Tribunal’s order, to the Tribunal and the parties to the review.

7. On 19 December 2024, the Tribunal registry wrote to the parties to advise that they could make any additional comment, in writing, they wished to make on the additional material by close of business on 10 January 2025. 

8. On 14 January 2025, the Tribunal determined the application for review. 

9. The Tribunal had before it relevant documents provided to it by the Registrar pursuant to the then section 37 of the Administrative Appeals Tribunal Act 1975 (147 pages), copies of which Mr Hodson and Mr Anstead confirmed they had received prior to the Tribunal hearing. The Tribunal also had regard to two social worker reports received from Child Support on 16 December 2024 (unpaginated) and additional material lodged by Mr Rosen on behalf of Mr Hodson on 10 January 2025 (labelled folios A1 to A4).

PRELIMINARY MATTERS

1. On 27 November 2024, Mr Hodson sought to lodge with the Tribunal material which he claimed showed that Mr Anstead was not a proper person to have care of [the child]. 

2. On 28 November 2024, I declined to accept that material because I did not consider the material relevant to the decision being reviewed. Section 7B of the Child Support (Assessment) Act 1989 (the Act) sets out the matters I need to consider as to whether or not Mr Anstead is an eligible carer for the purposes of a child support assessment, and Mr Anstead’s character is not one of those matters that I needed to consider.

3. In submissions received on 10 January 2025 (folios A1 to A4), Mr Rosen expressed concern about the redactions that had been made to the two social worker reports provided by Child Support on 16 December 2024. I note that all of those redactions are in accordance with an order I made under section 70 of the ART Act on 20 November 2024.

4. The material I permitted Child Support to redact were discussions between the Child Support social workers and [the child], her mother and other persons about why [the child] was not living with her mother.  The reasons that [the child] is not living with her mother are not relevant to this application for review, which is why I partially granted Child Support’s request for a non-disclosure order.

5. I will request that the Registry send a copy of my order, made pursuant to section 70 of the ART Act, to the parties with this decision. I noted that Child Support provided the reports unpaginated, so I had requested the Registry number the two social worker reports as folios C1 to C8, which I then referred to when making the order.

6. On 15 January 2025, Mr Anstead sought to lodge additional material with the Tribunal.  Mr Anstead was invited to make any written comments he wished to make on the two social worker reports by close of business on 10 January 2025.  The material lodged by Mr Anstead on 15 January 2025 did not address the contents of the social worker reports but was instead a record of factual events from his perspective.  The hearing, on 30 October 2024, was the appropriate forum for those matters to be ventilated, and I declined to accept additional evidence after the hearing. 

ISSUES

1. The statutory provisions relevant to this review application are found within the Act.

2. The issue which arises in this case is whether or not Mr Anstead is an eligible carer in respect of [the child].

CONSIDERATION

1. The Act provides for an administrative assessment of the child support payable by one separated parent to the other. It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes, the number and ages of their children and the percentages of care.

2. The Act also makes provision for a non-parent, who is caring for a child, to make an application for a child support assessment under which the parents may become liable to pay child support to the non-parent carer. 

3. Section 25A of the Act says that a non-parent who is an eligible carer of a child may apply under that section, in certain circumstances, for an administrative assessment of child support.  Mr Anstead has made such an application and the controversy in this matter centres around whether or not Mr Anstead meets the definition of an eligible carer.

4. Who is an eligible carer is defined by section 7B of the Act, and is essentially, at subsection (1), a person who has at least shared care of a child (shared care being defined as care greater than 35% – subsection 5(3) of the Act refers).

5. Subsection 7B(2) of the Act provides an exception to subsection (1) and states that if:

   ·      the person is not a parent or legal guardian of the child; and

   ·      the child’s parent or legal guardian does not consent to the person caring for the child;

   then the person is not an eligible carer unless it would be unreasonable in the circumstances for the parent or legal guardian to provide care for the child.

6. There appears to be no dispute that Mr Hodson does not consent to Mr Anstead providing care for [the child].

7. Subsection 7B(3) of the Act says that for the purposes of subsection (2), it is unreasonable for a parent or legal guardian to care for a child if:

   ·      the Registrar is satisfied that there is extreme family breakdown; or

   ·      the Registrar is satisfied that there is a serious risk to the child’s physical or mental wellbeing from violence or sexual abuse in the home of the parent or legal guardian concerned.

   There is no evidence that [the child] alleged she suffered from violence or sexual abuse in her father’s home, and therefore the matter to be considered is whether there has been extreme family breakdown.

8. The Act does not define extreme family breakdown.  However, the Child Support Guide (at 1.1.E.10) describes extreme family breakdown in the following terms:[1]

   [1] Child Support Guide, Guides to Social Policy Law, Department of Social Services, version 4.86

Extreme family breakdown

The Registrar will be satisfied that there has been an extreme family breakdown if:

·the child has never lived with the parent

·there has been a substantial period since the parent has provided care for the child, or

·other circumstances indicate extreme family breakdown.

However, the Registrar is unlikely to be satisfied that there has been an extreme family breakdown if the parent has had frequent and regular contact with the child over a substantial part of the period when another person provided care for the child.

I noted that I am not bound to apply policy as set out in the Child Support Guide.  However, in Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39, the Federal Court held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. In this instance, I accepted the policy is unobjectionable and, in the interests of consistency of decision-making under the Act, considered that this policy should be applied.

1. I noted that the additional material provided by Child Support encompasses two social worker reports, one dated 3 April 2023 and the other dated 13 March 2024.  In the first report (3 April 2023), the social worker concluded that it was not unreasonable for [the child] to live with Mr Hodson.  The second report (13 March 2024) concluded that extreme family breakdown had occurred, and it was unreasonable for [the child] to live with Mr Hodson.  The basis of this was that [the child] had no face-to-face contact with Mr Hodson since September 2022 and “currently has a distant relationship with him, with only occasional contact via social media”.  The social worker concluded that “[g]iven the length of time [the child] has been living away from her father and the barriers to resolution, it is considered that irreconcilable differences have led to an extreme family breakdown between them”.

2. The term extreme family breakdown also appears in the Social Security Act 1991, in relation to determining the rate of youth allowance and whether a young person should be considered independent from their parent (see section 1067A of that Act).  In that context, the term has been the subject of more learned consideration by the former AAT than those cases where the term is used in the context of a child support matter.  I considered those cases illustrative for the purposes of determining when an extreme family breakdown has occurred.

3. In Gunning and Secretary, Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education [2013] AATA 595, Senior Member Kenny considered the term extreme family breakdown and stated at [20]:

   However, s 1067A(9)(a)(i) of the Act requires the breakdown to be at an extreme level and that extent of breakdown is reflected in the remainder of the provision which refers to “other similar exceptional circumstances”. The Oxford Dictionary meaning of extreme includes “reaching high or the highest degree; exceedingly great or intense”.[12] As noted above, the Guide describes ongoing conflict alone as being insufficient to constitute extreme family breakdown. 

4. In Simakovic and Secretary, Department of Family and Community Services [2003] AATA 812 it was stated, by Member Cowdroy, at [27]:

   For the purpose section 1067A(9)(a)(i), any family breakdown must be extreme when considered in the context of the whole family situation. Ongoing conflict with a parent, or a parent’s refusal to allow the young person to return home, alone, is insufficient grounds to constitute an extreme family breakdown under the Act.

   If parental exclusion of a child from the family home is insufficient, alone, to constitute extreme family breakdown, the converse – where the child refuses to live with the parent – would also appear to be insufficient, of itself, to constitute extreme family breakdown.

5. Also, in Ness and Department of Employment, Education, Training and Youth Affairs [1998] AATA 110, Deputy President Barnett found at [37] that extreme family breakdown has occurred when:

   If, however, the family breakdown is so extreme, from whatever cause and because of whoever’s fault, that no reasonable adjustment of the student’s behaviour will mend the family breakdown, then, at that stage, it is unreasonable that the student live at the home of his or her parents because of extreme family breakdown.

6. The social worker reports confirm that Mr Hodson is happy to provide [the child] with a home, but it is [the child] who does not want to live with her father.  [The child] reportedly advised the social worker (13 March 2024) that she felt that her father did not listen to her, spoke roughly to her and was sometimes verbally aggressive which made her feel uncomfortable.  [The child] also expressed concern that she might be required to change schools if she lived with her father.  I accepted that [the child] is happier living with her sister and Mr Anstead, but none of the issues raised by [the child] led me to the conclusion that it would be unreasonable to expect [the child] to live with her father.

7. Having considered the evidence, I concluded that while there has been some degree of tension and possibly conflict between Mr Hodson and [the child], I was not satisfied that the degree of conflict is such that it constitutes an extreme family breakdown.  I did not consider the length of time during which Mr Hodson and [the child] had not had face‑to‑face contact to be particularly long, especially in circumstances where it seems that it is [the child]’s choices that underlie that estrangement, and it would not be unreasonable for [the child] to live with her father. 

8. Consequently, I was not persuaded that the estrangement between Mr Hodson and [the child] constitutes an extreme family breakdown. 

9. Having considered subsection 7B(3) of the Act, I found that it is not unreasonable for Mr Hodson to provide care for [the child].  Therefore, the exception set out in subsection 7B(2) of the Act is enlivened, and Mr Anstead is thus not an eligible carer in respect of [the child].

10. As Mr Anstead is not an eligible carer in respect of [the child], he cannot seek an administrative assessment of child support pursuant to section 25A of the Act and his application for such an assessment must be refused.

11. Therefore, and for these reasons, I decided to set aside the decision under review and substitute my own decision.

DECISION

The Tribunal set aside the decision under review and in substitution decided that Mr Anstead is not an eligible carer in respect of [the child] pursuant to section 7B of the Child Support (Assessment) Act 1989 and his application for an administrative assessment of child support must be refused.

Date(s) of hearing:	Wednesday, 30 October 2024
Representative for the Applicant:	Mr Warren Rosen
Representative for the Other party:	Unrepresented