Marich and Witsel (Child support)

[2023] AATA 833

Marich and Witsel (Child support) [2023] AATA 833 (17 March 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC024822

APPLICANT:  Ms Marich

OTHER PARTIES:  Child Support Registrar

Mr Witsel

TRIBUNAL:Senior Member K Dordevic, Presiding

Deputy President K Synon

DECISION DATE:  17 March 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that there was no change to the child [Child 1]’s care arrangements on 24 June 2022.

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 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 Marich (the mother) and Mr Witsel (the father) are the parents of two children. This application concerns the care arrangements of their eldest son, [Child 1] (the child), from 24 June 2022.

2. Services Australia – Child Support (the Agency) registered a child support case in respect of the child on 22 May 2009.

3. From 15 January 2021 the administrative assessment reflected the care of the child as 100% to the mother and 0% to the father.

4. On 2 August 2022 the father notified the Agency that the child had ceased living with the mother on 24 June 2022 and was now residing full time with his maternal grandparents.

5. On 9 August 2022 the Agency amended the care record based on the father’s care change notification, determining that the child was in the father and mother’s 0% care from 24 June 2022. On the same day the mother objected to the decision. On 10 October 2022 the objection was disallowed.

6. The mother sought review of that decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) on 11 October 2022.

7. The matter was heard on 7 February 2023. The father and mother appeared by MS Teams audio. The Child Support Registrar elected not to attend the hearing. The Tribunal also considered the documentation provided by the Agency (folios 1 to 112), the mother (A1) and the father (B1 to B3).

8. The matter was deferred to allow the mother to provide evidence of cash payments made to the maternal grandparents during the relevant period and the discharge summary relating to her hospital admission in June 2022. On 10 February 2023 the mother advised that she was told by [Hospital 1] that she must pay for a copy of the discharge summary.  

9. On 10 February 2022 the Tribunal issued an order to [Hospital 1], pursuant to subsection 95H(1) of the Child Support (Registration and Collection) Act 1988, requiring it to confirm whether the mother was an in-patient of the hospital from May to July 2022 and provide the discharge summary relating to any admissions. A response was received on 22 February 2023.

10. The mother provided her additional financial evidence on 20 and 21 February 2023 (marked folios A2 to A13), a copy of which was provided to the father.

11. On 23 February 2023 the Tribunal issued a further order to [Hospital 2] pursuant to subsection 95H(1) of the Child Support (Registration and Collection) Act 1988, requiring it to confirm whether the mother was an in-patient from May to July 2022. A response was received on 7 March 2023 stating that there was no record of the mother attending the hospital during the relevant period.

12. The relevant medical evidence was exchanged with the father on 13 March 2023 (marked folios A14 to A15). He was given the opportunity to provide a response to the evidence by 17 March 2023. On 17 March 2023 the father advised that he had no written or oral submissions to make in response. The Tribunal reached its decision on the same day.  

ISSUES

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

2. The issue which arises in this case is whether there was a change to the child’s care arrangements and, if so, the date of effect of the new care determination.

CONSIDERATION

1. Relevant to this matter, the Act requires the primary decision-maker to consider the actual or likely pattern of care, by reference to a care period considered appropriate, having regard to all the circumstances. The primary decision-maker’s task is to determine the pattern of care based on actual care at the time of notification and the likely care thereafter. That is also the task of this Tribunal.

2. The mother’s position is as follows. At all relevant times the child was in her care, notwithstanding the fact that he was living in the maternal grandparents’ home from 24 June 2022. She was the victim of fraud, whereby her life savings of hundreds of thousands of dollars were stolen from her. There is a current police investigation. This has had a significant impact on her emotional wellbeing, in addition to the financial implications.

3. When contacted by the Agency on 9 August 2022[1] the mother confirmed that the child was living with her parents until she could secure accommodation. When asked whether or not she accepted that there was a change to the care arrangements she apparently told the case officer “just do what you need to.”

   [1] Folio 9

4. As outlined above, the mother immediately lodged an objection; in fact it is recorded as being lodged some eight minutes after the original decision[2]. The cited grounds for objection were that she placed the child with her parents temporarily as she was homeless and until such a time that she could secure alternate accommodation. She asserted that she continued to provide for the child financially, including his medical expenses and food, by giving money directly to her parents. She also stressed that she continues to liaise with the child's behavioural manager and NDIS.

   [2] Folios 11 and 14

5. At hearing, the mother’s evidence can be summarised as follows. The child was always in her care, even when he was living with the maternal grandparents. Following the fraud and resultant police investigations and court proceedings, she was homeless. Her health significantly deteriorated. She placed the child with her parents on a temporary basis until such time as she could secure alternative accommodation. She could not move into her parents’ home as her sister was also living at their home. She and her sister are estranged and so could not share the home. Her sister moved out in August 2022 (she could not recall the specific date) and she then moved into her parents’ home soon after. Prior to that time, she was hospitalised due to a deterioration in her health. Upon discharge, she recalls not being permitted to be alone; she lived with a friend to ensure she receive adequate supervision. She stressed that she was not in the right state of mind to care for her daughter (from a subsequent relationship) who had to live with her father during the same period.

6. At hearing, she explained that the child has been diagnosed with autism and since going through puberty has become physically violent. The maternal grandfather is concerned for her safety, given the child's violence. The mother explained that the child’s support worker understands the care arrangements, including the fact that she makes all decisions in respect of the child. The mother’s evidence to the Agency and the Tribunal is that she continued to take the child to his medical appointments, explaining that the child would refuse to go to the doctor without her. She explained that every day of caring for the child is challenging.

7. In support of her objection the mother provided a letter from [Ms A], Support Coordinator, AFEA Care Services[3] which states the following:

   [Child 1] (DOB [date]) is my NDIS participant who has a diagnosis of autism. Mother [Ms Marich] is his guardian and makes decisions on behalf of him. I have been supporting the family since February 2022.

   [3] Folio 25

8. On 2 February 2023 the mother also provided a statement from her father, [Mr B], stating[4]:

   To whom it may concern I [Mr B] confirm that [Ms Marich] and [Child 1] residence (sic) at my home and that she had full care of her son taking him for appointments to doctors and made appointments with NDIS and my wife and I assisted in looking after [Child 1] when she was attending to personal dealing…

   [4] Folio A1

9. The Tribunal questioned the mother as to financial arrangements in place whilst she was not living with the child at the maternal grandparents’ home. She testified that every couple of days, or at least weekly, she would withdraw $200 in cash from her account and provide it to her parents. In addition, she would also purchase the child's favourite food. She and her parents never made a concrete financial arrangement as she had “enough of my own problems” and she was unemployed during this time. She did not make electronic transfers to her parents as she is distrustful of such arrangements given the fraud that was perpetrated against her.

10. The mother has provided bank statements that indicate she made the following cash withdrawals[5]:

    [5] At folios A2 to A13

Date	Descriptor	Amount
4 July 2022	ATM Withdrawal	$200
7 July 2022	ATM Withdrawal	$200
18 July 2020	ATM Withdrawal	$200
18 July 2020	ATM Withdrawal	$250
5 August 2022	ATM Withdrawal	$200
8 August 2022	ATM Withdrawal	$200
11 August 2022	ATM Withdrawal	$200
22 August 2022	ATM Withdrawal	$200
12 September 2022	ATM Withdrawal	$200
7 November 2022	ATM Withdrawal	$200
21 November 2022	ATM Withdrawal	$200
TOTAL	$2,250

1. When asked about the current living arrangements, the mother explained that the child remained at the grandparents’ home even though she has secured alternative housing at the end of December. She has been unable to secure school transport for the child to attend [School 1] in [Suburb 1]. It is an hour’s drive to the school and therefore transport is necessary. She continues to advocate for transport from her new home, however she has been advised that it will take some time and is unlikely to be arranged until the end of term 1, 2023. The child’s teacher advised her that it is usually a protracted process. She is trying to secure the transport earlier as the child does not like his maternal grandfather. She has been offered respite care, but the child refuses to attend.

2. In conclusion, the mother stressed that the father is only getting information from her own father, everything is “second hand”. He does appreciate how demanding it is on her to care for the child; it is not “easy to do on your own”.

3. The father's position can be summarised as follows. The Agency has made the correct decision. He has a cordial relationship with the maternal grandfather and would attend his home on a weekly or fortnightly basis, mainly for the younger child to connect with his maternal family and his brother. He got all his information about the child’s care arrangements from the maternal grandfather. He was told that the mother was not there on a full-time basis and that it was the maternal grandparents who were providing daily care to the child. The grandfather intimated that the mother was going through some difficulties and that she was getting help. The father recalls offering to give money for the child, but the grandfather said “He's my grandson, I don't need financial support”. It was this comment that led to him reporting the care change. The father went on to explain that he was not advised of any fixed timeline about when the child would return to his mother’s care; the grandparents did not go into detail. He understood that the grandparents were facilitating NDIS support, as they would tell him when allied health professionals made a home visit.

4. The father stated that he has no evidence to suggest that the mother's testimony that she lived with the child and maternal grandparents from August to December 2022 is not true. Further, he is not aware of when the maternal aunt moved out of the grandparents’ home. However, he did note that after August 2022 the maternal grandfather never mentioned to him that the mother had begun living at their home. He did concede he never made that inquiry. However, he can confirm that the mother was never present, nor was he ever told that she lived there on a permanent basis. He could only go on what he was told. He made the assumption that if the bus continued to collect the child for school, he was still permanently living with the maternal grandparents and it was not “in my interest to find out” if the mother was also living at their home. The Tribunal understands that what the father meant from this comment was that it was not appropriate for him to ask about the mother's whereabouts rather than him being wilfully blind to the mother’s living arrangements.

5. The father explained that the first time he recalls seeing the mother at the home of the maternal grandparents was a “few weeks” before December 2022. No explanation was provided to him about why she was there, nor did he make inquiries. In December 2022 he recalls having a conversation with the maternal grandfather who advised that the mother had found a rental unit and that the child was with her for a few days to see how he liked it.

6. The father was invited to comment about the mother's evidence about the deterioration in her mental health from June to August 2022. In response, he stated “I'm suspicious” as he has frequently received a “litany of misinformation” from the mother. As to the mother’s statements about the provision of $200 a week in cash to the maternal grandparents, he remarked that it is not able to be independently verified.

7. There is no statutory definition of care. However, the matter of Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959 is instructive on what constitutes care. Hughes FM stated at paragraph 56, that 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?

8. The Tribunal finds that both the mother and father are witnesses of credit.

9. The father gave his evidence in a frank, measured and consistent manner. He was also willing to make concessions, which enhanced his credibility. Whilst the mother gave her evidence in a stilted manner and required specific questioning in order to elicit relevant information, the Tribunal nevertheless found that she used her best efforts to provide an account of the child’s care from June 2022. Certainly, her evidence at hearing remained consistent with what she had already provided to the Agency. The Tribunal was of the view that her history of domestic violence (outlined below) and acute emotional distress explained, at least in part, her difficulty in providing a fluent account of the child’s care during the relevant period. The Tribunal found the mother’s oral testimony compelling as she did not attempt to embellish the non-financial assistance she provided to the child whilst she was not living with the maternal grandparents.

10. The Tribunal makes the following findings. The mother was defrauded of her considerable life savings by her former partner. Theirs was a relationship marked by psychological and physical violence, as well as financial abuse. As a consequence of the fraud and financial abuse, the mother became homeless in June 2022. On 10 June 2022 the mother was admitted to hospital following a severe deterioration in her health, largely caused by life stressors. On balance, the Tribunal accepts the mother’s testimony that she made arrangements for her parents to care for the child in June 2022 and couch surfed at the home of friends until such time that her sister, from whom she is estranged, moved out of the maternal grandparents’ home in August 2022. Thus, at most, the child was not in her physical overnight care for about three months. The Tribunal finds that the child’s diagnosis of autism and associated violent behaviours suggests that the instability of the mother’s housing situation would impact on the child’s health and wellbeing and that it was appropriate that he be placed into a more stable home environment.

11. As to the financial support the mother provided the child during the relevant period, the bank statements in evidence show regular withdrawals during July and August 2022. Whilst not conclusive, this evidence does not contradict her submission that she provided cash payments to the grandparents during this period. That the frequency of such withdrawals decreases from September 2022 also supports her account of her financial and housing arrangements. Of course, the father is correct in stating that there is no evidence to substantiate that these cash withdrawals were made available to the grandparents. It is certainly possible that the mother did not provide financial support to the child during the relevant period. In fact, one might reasonably argue that it was unlikely given her impecunious circumstances and the maternal grandfather’s statement that he did not require financial support. In the Tribunal’s view, neither conclusion is more compelling than the other. For completeness, the Tribunal finds that the child is not financially independent and does not provide for his own needs.

12. The Tribunal placed considerable weight on the evidence provided by the child’s support worker, who states that she has supported the family since February 2022 and it is the mother who makes decisions on behalf of the child. This is the only evidence before the Tribunal from a third party. Further, this statement supports the mother’s position that it was she who organised the child’s school transport, medical appointments and also organised intervention to assist the grandfather understand the child’s condition and behaviour.

13. The father does not suggest that it was he or the maternal grandparents who did provide this support and assistance, notwithstanding the fact that the Tribunal accepts that the grandfather would provide him updates regarding the support the child was receiving. Given the mother’s description of the child’s special needs (which the father did not refute) the Tribunal is satisfied that during the June to August 2022 period the mother met the child’s educational, health, emotional and transport needs.

14. After examination of the factors outlined in Polec and weighing the evidence before it, the Tribunal is satisfied that during the relevant period the mother provided care to the child. Whilst the Tribunal accepts that the child was living, without his mother, in his grandparents’ home during June to August 2022 the Tribunal is not persuaded that he was in the grandparents’ care (or that of another person) during that same period. 

15. As the Tribunal is not satisfied that there was a change to the child’s care arrangements on 24 June 2022 or soon thereafter, it is not required to revoke the existing care percentage of the child.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that there was no change to the child [Child 1]’s care arrangements on 24 June 2022.