Hussey and Farrer (Child support)

[2017] AATA 2866

Hussey and Farrer (Child support) [2017] AATA 2866 (10 November 2017)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/BC011864

APPLICANT:  Ms Hussey

OTHER PARTIES:  Child Support Registrar

Mr Farrer

TRIBUNAL:Member J Thomson

DECISION DATE:  10 November 2017

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Mrs Hussey be recorded as having 100% care of [Child 1] with effect from 3 February 2017.

Member J Thomson

CATCHWORDS

Child Support – Percentage of care – Determination of the likely pattern of care – 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

1. Ms Hussey is the non-parent carer of [Child 1], (born 1999) and Mr Farrer and [Ms A] are [Child 1’s] parents. Ms Hussey seeks review of an objection decision made by the Department of Human Services – Child Support (the Department) on 12 May 2017. This decision allowed an objection by Mr Farrer to a decision dated 28 February 2017 to accept Ms Hussey notification that she had 100% care of [Child 1], from 30 August 2016, with effect from 3 February 2017.

2. The Tribunal heard the matter on 19 October 2017. Ms Hussey and Mr Farrer both attended the hearing via conference telephone and gave affirmed evidence. [Ms A] agreed to have her evidence considered on the hearing papers and elected not to attend the hearing. The Tribunal had before it documentation provided by the Department which was admitted into evidence and marked exhibit 1. Both Ms Hussey and Mr Farrer had copies of those papers with them at hearing.

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence of Ms Hussey and Mr Farrer, and the documents provided by the Department, exhibit 1.

2. The law relevant to care percentage determinations is found in the Child Support (Assessment) Act 1989, (the Act). Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies, relevantly, if the parent or carer “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 applies, relevantly, if the parent or carer “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Both sections reflect the idea that the Department makes point-in-time care decisions on the basis of what has happened up until the change in care is considered and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate and when such a divergence occurs, a parent or carer can notify the Department and a new care determination can be made. However, the legislative test at first instance and on review remains the same: what had happened until the date of the notification and what was likely to happen thereafter?

3. The Department records show that from 2 August 2016, neither parent had any care of [Child 1].

Mrs Hussey’s evidence

1. Ms Hussey is [Child 1’s] paternal aunt. She gave evidence that, as is often the case with 16 year old children, [Child 1] was proving difficult to manage. Ms Hussey was aware that[Child 1] had issues with both her parents and, in early August 2016, she had moved out of Mr Farrer’s home, and the family were having difficulty finding accommodation for her.

2. On 16 August 2016, Ms Hussey offered to take [Child 1] into her care on a temporary basis until alternative accommodation could be found for her. Ms Hussey gave evidence that [Child 1] remained in her care until early March 2017, when suitable accommodation was arranged and [Child 1] moved out of Mrs Hussey’s rented premises.

3. At the time she took [Child 1] into her care, Ms Hussey said she was living in rented premises with her four children aged between six and 14 years, whom she was supporting as a sole parent. At that time, she was convalescing at home on stress leave from her job as [an occupation] on 75% of her normal income, receiving $1400 gross per fortnight, $1200 net of tax. She was paying weekly rent of $340, and struggling to meet the usual costs associated with raising a young family including electricity of $500 per quarter, Internet service costs of $80 per month for her eldest daughter’s computer, used in connection with her schoolwork.

4. When [Child 1] came to live with her in August 2016, she noticed her food costs rose by $200 per week, her electricity bill increased to $1000 per quarter, and, because [Child 1], who was then attending [a school], conducted by [an organisation] and providing specialist education facilities for children with particular learning difficulties, required computer access to the Internet for her schoolwork and mobile phone, she had to increase her Internet capacity, the cost of which increased to $120 per month.

5. Ms Hussey said she experienced behavioural issues with [Child 1]; she noticed [Child 1’s] tendency to leave the lights on throughout the house at night, general untidiness, and a reluctance to follow house rules. There were instances of her failing to attend school and having friends to the house without first seeking permission from Ms Hussey, and when Ms Hussey was not present at home.

6. Ms Hussey said she also purchased clothing for [Child 1]. She was aware [Child 1] was in receipt of some form of Centrelink benefit and she asked [Child 1] to contribute $150 per fortnight from her Centrelink benefit which Ms Hussey applied to assist in meeting the general household expenses. However, she refused to pay for [Child 1’s] cigarettes which [Child 1] managed to purchase herself, notwithstanding she was still a minor and not legally permitted to purchase cigarettes. She also said there were occasions when [Child 1] was unable to contribute the full amount of $150 per fortnight.

7. Although [the]  school provided a bus service to transport its students to and from school, [Child 1] often missed the bus and Ms Hussey was obliged to drive her to and from school at least two or three times per week. She said [Child 1] suffered from anxiety attacks and had other school related issues which often required Ms Hussey to attend the school for conferences with [Child 1’s] teachers, and to collect her from school when she suffered anxiety attacks or was otherwise indisposed.

8. Ms Hussey said she deferred applying to the Department for child support until 3 February 2017 because she had been seeking an opportunity to discuss the prospect of Mr Farrer contributing funds to assist with her care of [Child 1]. There was also some uncertainty as to how long [Child 1] would be staying with her, as both she and [Child 1] were still looking for alternative accommodation for [Child 1]. She said it was not until early 2017 when it became apparent to her that Mr Farrer was not prepared to provide any financial contribution to the cost of caring for [Child 1], that she decided to apply for child support and contacted the Department to inform them that [Child 1] had been in her 100% care since 30 August 2016.

9. Ms Hussey gave evidence that she provided other financial assistance to [Child 1] by paying for driving lessons. She said she paid $240 for a total of four lessons at a cost of $60 each, two of which were gifted to [Child 1] as a birthday present.

10. She also gave evidence of assistance she provided to [Child 1] with the compilation of a resume for job interviews as well as advice as to how to conduct herself and what to wear for job interviews. She said [Child 1] also confided in her regarding issues she was having with her father and his partner, her mother, and her boyfriends. She also assisted in the ongoing search for alternate accommodation until [Child 1] moved out in early March 2017 after finding suitable accommodation. Ms Hussey said she also took [Child 1] to the local [medical centre] for treatment for her anxiety and [medical] conditions.

Mr Farrer’s evidence

1. Mr Farrer’s acknowledged in evidence that the relationship between him and [Child 1] was problematical. He described their relationship as verbally toxic and that he and [Child 1] had issues regarding her untidiness, lack of respect and refusal to cooperate generally, such that he found her very difficult to live with, as a consequence of which, [Child 1] ceased living with him and went to live with his sister, Ms Hussey in August 2016 until 7 March 2017 when she moved out after finding suitable alternative accommodation.

2. Mr Farrer acknowledged that he had no care of [Child 1] from early August 2016 and saw very little of her while she was living with Ms Hussey because he was not on good terms with her during that period.

3. He acknowledged in evidence that he provided very little financial assistance to [Child 1], largely because she never sought his assistance, and little or none whilst she was living with Ms Hussey. He also acknowledged he provided no assistance in finding alternative accommodation for [Child 1] when she moved out of his house, although he said he did assist her in moving out of Ms Hussey premises on 7 March 2017.

4. He also accepted that Ms Hussey had incurred expense in providing care for [Child 1] and that although [Child 1] was in receipt of a Centrelink benefit, it was not sufficient for her to support herself.

5. Mr Farrer challenged Ms Hussey evidence regarding the issue of the driving lessons, claiming that the cost of all four lessons was a birthday gift. His evidence in this respect was based on information provided by [Child 1], and for that reason, the Tribunal is inclined to give little weight to that evidence.

6. The Tribunal accepts Ms Hussey’s evidence and finds that a change in care happened when [Child 1] went to live with her from 16 August 2016 until 7 March 2017 when she found suitable alternative accommodation and moved out of Ms Hussey’s premises, and that during that time [Child 1] was in Ms Hussey’s 100% care, notwithstanding she was in receipt of a Centrelink benefit at the time. The Tribunal finds that the evidence above suggests [Child 1’s] Centrelink allowance was not sufficient for her to support herself independently.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Hussey be recorded as having 100% care of [Child 1] with effect from 3 February 2017.