Hooker and Child Support Registrar (Child support)

[2020] AATA 4925

Hooker and Child Support Registrar (Child support) [2020] AATA 4925 (16 September 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC019630

APPLICANT:  Mrs Hooker

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member M Baulch

DECISION DATE:  16 September 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – whether a terminating event happened in relation to the payee – none of the parents had at least 35% care – terminating event happened - 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

1. This application for review is about the child support assessment applying in respect of [Child 1], who was born in 1998.

2. The Child Support (Assessment) Act 1989 (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.

3. Mrs Hooker and Mr [A] are the separated parents of [Child 1].  The Department of Human Services, now known as Services Australia – Child Support (Child Support) has made child support assessments applying to Mrs Hooker and Mr [A].  Since at least 15 February 2010, those assessments have been based upon Mrs Hooker having 100% care of [Child 1].

4. On 13 February 2020, a Child Support employee decided that [Child 1] had left Mrs Hooker’s care on 13 August 2013 and that this constituted a child support terminating event (the decision under review).  Mrs Hooker objected to that decision and, on 24 July 2020, that objection was disallowed.  Mrs Hooker has now applied to this tribunal seeking an independent review of Child Support’s decision.

5. A hearing into the application for review was held by the tribunal on 16 September 2020.  Mrs Hooker discussed the application for review with the tribunal by telephone and gave evidence under affirmation during the hearing.  Mrs Hooker was represented by her husband, Mr Hooker, who made submissions on Mrs Hooker’s behalf.  A representative of the Child Support Registrar (the Registrar) did not participate in the hearing. 

6. The tribunal had before it relevant documents provided to it by the Registrar pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (151 pages); copies of which Mrs Hooker confirmed she had received prior to the tribunal hearing.  The tribunal also had regard to additional material lodged by Mrs Hooker before the hearing (labelled folios A1 to A8).

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 Mrs Hooker had reduced care of [Child 1] and whether this constituted a child support terminating event.

CONSIDERATION

1. Sections 49 and 50 of the Act require the Registrar to determine the likely pattern of care for a child during a period that is considered appropriate (a care period).  Unless an interim care determination applies under section 51 of the Act, the Registrar will determine the pattern of care based upon the extent of the actual care that a parent has, or is likely to have, of their child during a care period.

2. Subsection 12(2AA) of the Act says that a child support terminating event happens when neither parent is an eligible carer for a child and there are no non-parent carers entitled to be paid child support in respect of that child.  Subsection 7B(1) of the Act says that a person is an eligible carer if the person has at least shared care of a child.  Subsection 5(3) of the Act says a person has shared care if their care percentage is at least 35% but not more than 65%.

3. These provisions mean that if neither parent’s percentage of care for [Child 1] is at least 35%, a child support terminating event will have occurred. 

4. I noted that the term “care” is not defined in the child support legislation.  However, I did have regard to the decision of Federal Magistrate Hughes (as she then was) in Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959, where she stated at [53] & [56]:

   53.Given the lack of a relevant statutory definition of “care” of a child, all parties requested that the Court provided some guidance in relation to the matters that should be taken into account in considering whether and to what extent the first respondent continued to provide care for the child the subject of these proceedings.

   …

   56.In my view, in determining whether and to what extent a person has care of a child for the purpose of the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988, it is necessary to consider the following:

   a.     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?

   b.    To what extent does the person make arrangements for others to meet the needs of the child?

   c.     To what extent does the person pay for the costs of meeting the needs of the child?

   d.    To what extent does the person otherwise provide financial support for the child?

   e.     To what extent does the child provide for his or her own needs or have those needs met from another source?

   f.     To what extent is the child financially independent or financially supported from another source?

5. The evidence clearly indicated that [Child 1] has been a troubled child in respect of whom parenting was a challenge.  Mrs Hook’s evidence was that [Child 1] was in and out of school, support school and was diagnosed with [a] disorder.  Mrs Hook feels particularly aggrieved by Child Support’s decision to determined her as having 0% care of [Child 1] and submitted that she feels she has been denied her motherhood.

6. Mrs Hooker does not dispute that [Child 1] was granted Centrelink payments, but disputes that [Child 1] was living independently.  Although [Child 1] was in and out of Mrs Hooker’s home, the evidence suggested that Mrs Hooker was very involved in [Child 1]’s wellbeing and that she provided [Child 1] with financial and parental support.  Extracts from Mr Hooker’s diary entries detail the extent of Mrs Hooker’s involvement in [Child 1]’s life.

7. Evidence obtained by Child Support from Centrelink indicated that [Child 1] was granted special benefit on the basis that it was unreasonable for her to live at the home of either of her parents from 13 August 2013.  Once [Child 1] attained the age of 16, she commenced to receive youth allowance.  I noted that, as at 13 August 2013, the rate of special benefit payable to someone in [Child 1]’s circumstances was $407.50 per fortnight (or $10,595 per annum).

8. I accepted that Mrs Hooker was actively involved in [Child 1]’s life and provided her with ongoing emotional and financial support.  However, from 13 August 2013 [Child 1] only stayed at her mother’s home on a sporadic basis and appeared to have lived largely independently.  While Mrs Hooker was providing [Child 1] with some financial support, once [Child 1] was in receipt of Centrelink payments from 13 August 2013 [Child 1] was substantially financially independent from Mrs Hooker.

9. I agreed that a care percentage of 0% is factually incorrect and totally understated the extent to which Mrs Hooker provided care to [Child 1].  However, having considered the evidence, I was not persuaded that Mrs Hooker can be taken to have provided [Child 1] with at least 35% care from 13 August 2013. 

10. I therefore found that from 13 August 2013 Mrs Hooker was no longer providing [Child 1] with at least 35% care and ceased to be an eligible carer for the purposes of the Act.  I identified no other person as being an eligible carer in respect of [Child 1] and I consequently found that a child support terminating event occurred on 13 August 2013. 

11. Section 74 of the Act says that when the Registrar becomes aware of a child support terminating event, the Registrar must immediately take such action as is necessary to take into account the event.  In this case, that means that the child support assessment for [Child 1] ended from 13 August 2013.

12. Therefore, and for these reasons, I decided to affirm the decision under review.

DECISION

The decision under review is affirmed.