Mayhall and Wellstone (Child support)
[2024] ARTA 429
•16 December 2024
Mayhall and Wellstone (Child support) [2024] ARTA 429 (16 December 2024)
Applicant/s: Ms Mayhall
Respondent: Child Support Registrar
Other Parties: Mr Wellstone
Tribunal Number: 2024/BC028017
Tribunal: Member S Letch
Place:Brisbane
Date:16 December 2024
Decision:The Tribunal affirms the decision under review.
CATCHWORDS
CHILD SUPPORT – particulars of the administrative assessment – income, property and financial resources – earning capacity – diagnosed incapacity for work – grant of disability support pension – 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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.
Statement of Reasons
BACKGROUND
Ms Mayhall and Mr Wellstone are the parents of [Child 1] (born June 2006) and [Child 2] (born June 2010). Mr Wellstone has been assessed by Child Support as liable to pay child support. Ms Mayhall seeks a review of an objection decision which disallowed her objection to a “change of assessment” decision of 9 March 2024.
By way of background, it is convenient to set out some extracts from the objections officer’s decision letter dated 10 May 2024:
…
The child support assessment under review is as follows:-
For the period 1 August 2023 to 31 October 2024, Mr Wellstone is to pay $nil per annum in child support based on his 2023/2024 estimated income of $nil. Ms Mayhall is assessed on her 2022/2023 adjusted taxable income (ATI) of $111,309.DECISION UNDER REVIEW
On 11 January 2024, Ms Mayhall applied for a change to the assessment on the basis of Reason 8A and Reason 8B.
…
On 9 March 2024, a Change of Assessment (CoA) Decision Maker (DM) refused to change the assessment as a Reason was not established.
…
A child support assessment is generally calculated using the parents' most recent taxable income. Services Australia will be satisfied there are special circumstances if a parent's adjusted taxable income is not appropriately reflected in the assessment, rendering it unfair.
Mr Wellstone is assessed on an estimated income of $nil. There is no evidence he is earning an income at this time and he is supported by his wife.
When Mr Wellstone lodges his relevant tax return, his estimated income will be compared against his actual income. If the actual income is less than or equal to the estimated income, the records will be noted to show that no further action is required. If Mr Wellstone‘s actual income is more than his estimated income, the assessment will be amended using his actual income.
In considering the above, I am satisfied the agency`s automatic reconciliation process will identify any discrepancies with Mr Wellstone‘s estimate and special circumstances do not exist under Reason 8A.
Reason 8A is not established.
In order to establish Reason 8B I must be satisfied that the child support assessment is unfair
because of Mr Wellstone's earning capacity.
…
In assessing a parent s capacity to earn, Services Australia can only determine that a parent’s
earning capacity is greater than is reflected in his or her income used in the child support formula if it is satisfied about all of the following three criteria: -1. The parent is either:
-Not working despite ample opportunity to do so; or-Has reduced his or her weekly hours of work to below full time work; or
-Has changed his or her occupation, industry or working pattern;
AND2. The parent s decision about his or her work arrangements is not justified by either:
-His or her caring responsibilities; or
-His or her state of health;
AND3. The parent has failed to show that the decision about his or her work arrangements was not substantially motivated by the effect this would have on the child support assessment.
Services Australia must be satisfied that all three compulsory criteria are satisfied before it can change an assessment to take into account a parent s earning capacity, rather than his or her actual income.If the parent s circumstances satisfy only one or two of the criteria, Services Australia cannot make a decision based on the parent’s earning capacity.
Criterion one
Mr Wellstone is unemployed therefore I find criterion one is met.
Criterion two
It would usually be expected that a parent who claims to have made a decision to change their work arrangements because of their health will have been diagnosed by a qualified medical practitioner; treated for the condition and have made that decision based on medical advice.
Mr Wellstone has provided evidence from two medical practitioners to show he is unwell and unable to work at this time. Ms Mayhall disputes the evidence Mr Wellstone has provided, she states he is choosing not to work to avoid paying child support and she wants a second opinion on the certificates.
As a Decision Maker, I am not at liberty to question a medical practitioners opinion unless I find there is a need for further evidence. In this case, I do not find there is a need for further evidence from Mr Wellstone. I am satisfied the evidence provided by Mr Wellstone clearly shows that his decision about his work arrangements is justified by his state of health. As such, criterion two is not met.
As all three criterion are not met, I do not find Mr Wellstone has an unexercised earning capacity.
Reason 8B is not established.
DECISION
Outcome: The objection is disallowed.
As no Reason has been established, the application must be refused under Section 98F of the Child Support (Assessment) Act 1989. As a result, no changes will be made to the child support assessment.
…
Ms Mayhall and Mr Wellstone participated in the hearing by conference telephone. In making its decision, the Tribunal took into account the Child Support materials, and the additional materials submitted by both parties.
CONSIDERATION
The legislative framework
The rate of child support payable by a liable parent is usually based on an administrative assessment under Part 5 of the Child Support (Assessment) Act 1989 (the Act). A formula is used. It takes into account variables including each parent’s adjusted taxable income for the last relevant year of income, the number of children and the level of care provided by each parent.
Part 6A of the Act allows for a departure from an administrative assessment (a process commonly known as a “change of assessment”). Under subsection 98C(1), the Registrar may make such a departure determination if three matters are established:
· one, or more than one, of the grounds for departure referred to in subsection 98C(2) exists (subparagraph 98C(1)(b)(i));
· a departure is just and equitable as regards the children and each parent (sub-subparagraph 98C(1)(b)(ii)(A)); and
· it is otherwise proper to make a departure decision (sub-subparagraph 98C(1)(b)(ii)(B)).
Subsection 98C(2) provides that the grounds for departure are the same as the grounds set out in subsection 117(2) of the Act.
If satisfied that a ground or grounds exist and that it would be just and equitable and otherwise proper to make a particular determination, the Tribunal may make one of the determinations prescribed in section 98S of the Act. It permits a range of determinations, including varying the rate of child support payable, the adjusted taxable income or the cost percentage for a child.
Issue 1 – Is there a ground to depart?
Subparagraphs 117(2)(c)(ia) and 117(2)(c)(ib) of the Act, commonly referred to by Child Support as Reasons 8A and 8B, provide as grounds for departure:
(c)that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:
…
(ia)because of the income, property and financial resources of either parent; or
(ib)because of the earning capacity of either parent; …
The matters which must be taken into account when assessing a person’s earning capacity are contained in subsection 117(7B) of the Act, which provides the following:
In having regard to the earning capacity of a parent of the child, the court may determine that the parent's earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied that:
(a) one or more of the following applies:
(i) the parent does not work despite ample opportunity to do so;
(ii) the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full-time work for the occupation or industry in which the parent is employed or otherwise engaged;
(iii) the parent has changed his or her occupation, industry or working pattern; and
(b) the parent's decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:
(i) the parent's caring responsibilities; or
(ii) the parent's state of health; and
(c) the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.
10.The starting proposition is that the child support formula should apply. Only in special circumstances should a departure be made. The words “in the special circumstances of the case” are not defined in the legislation. While it is not possible to define with precision the meaning of that term, it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the legislature is that the Tribunal will not interfere with the administrative formula result in the ordinary run of cases. In Gyselman and Gyselman (1992) FLC 92-279, it was held that “special circumstances” were “facts peculiar to the particular case which set it apart from other cases”.
The hearing
11.In response to the Tribunal’s questions, Mr Wellstone told the Tribunal that he made a claim for disability support pension (DSP) with Centrelink in March of this year, which was granted in September 2024.[1] His primary condition is his mental health – he suffers from severe depression and anxiety. He said he had “doubled his medication” for the hearing as his level of anxiety was very high. His secondary condition is his back; it is “getting worse”. He recently had a CT scan; physiotherapy has not improved the condition. He takes medication to relieve the pain. Future treatment may include surgery.
[1] Folios B26 and B27 confirm Mr Wellstone’s receipt of DSP.
12.Ms Mayhall told the Tribunal that Mr Wellstone suffers from “fake illnesses” which only started around the time of the last Tribunal hearing. She said he is “fit and healthy”; he was working full-time “on the farm”. In a recent domestic violence-related Court proceeding, Ms Mayhall said that “the judge could see my point of view”; she considers other government bodies should take note. From her point of view, there is ample proof to show Mr Wellstone is not as unwell as he says he is; she has not received any child support and has incurred debt in the form of significant legal fees. She feels she has been “attacked” for questioning Mr Wellstone’s health, and that the children have suffered significantly as a result of Mr Wellstone choosing to leave work in October 2021. She said Mr Wellstone had desperately wanted to leave work and he chose his lifestyle; she said she is entitled to feel upset about the impact that decision has had on the lives of the children in particular. Ms Mayhall said Mr Wellstone has “continued his plan concocted with his mother” to avoid child support. Ms Mayhall said Child Support’s original decision (assessing Mr Wellstone on his earning capacity) was “spot on”; ever since, they have been accepting his “fake” medical conditions. Ms Mayhall said if her application was not successful, she would “continue fighting” for mothers not receiving a fair level of child support.
13.In response to the Tribunal’s question about his representations to Child Support in May 2022 that he was working for up to 80 hours a week “on the farm”, Mr Wellstone told the Tribunal that his biggest concern was that, having been on medication since March 2020, he did not want Ms Mayhall knowing what he was “actually going through” as he said “he knew what she (Ms Mayhall) was like” and that she would immediately use that against him in relation to the care of the children even though they were not being affected by his issues. When he brought his previous Tribunal application, that was when his mother told him things had got to the point where he was “going to have to tell them” about his mental health condition; he said Ms Mayhall has taken the email correspondence from his mother (taken by somebody who had somehow gained access to his email account) “out of context” and misrepresented it. Mr Wellstone said that “within 24 hours” of the previous Tribunal hearing during which he raised his mental health, he received correspondence from Ms Mayhall’s lawyer referring to concerns about his mental health condition.[2] Mr Wellstone said Ms Mayhall was “perfectly happy for him to have mental health issues” so that she could affect his access to the children. Mr Wellstone said Ms Mayhall has used that information in a way that suits her; when it comes to parenting, he is unfit because of his mental health – however, he is allegedly fit to work full time when it comes to paying child support. He said the latter contradicts the opinions of four separate health professionals including two government practitioners.
[2] See folios B22 to B24.
14.In terms of treatment, Mr Wellstone said that he is regularly seeing a psychologist as well as having regular appointments with his treating doctor. He is on a variety of medications; he takes anti-depressants, a painkiller and muscle relaxant (for his back), codeine, Nurofen and melatonin. In response to the Tribunal’s question about whether he would be able to work part time up to 15 hours a week (the threshold for qualification for DSP), Mr Wellstone said that because of the amount of medication he takes, he is not able to drive and his concentration suffers. He is also very tired most of the time; he “does not like being around people” and “feels like he is being watched”. He now requires his wife’s full-time support (she has claimed a carer payment from Centrelink, having recently ceased work as [an occupation 1], which has not yet been determined but “looks like is about to be finalised”). Mr Wellstone said Ms Mayhall is well aware of his previous mental health struggles in his 20s, which included “self-harm”; he suggested Ms Mayhall is now exploiting his weaknesses.
15.In relation to the “farm stay”, Mr Wellstone said that that did not involve generating any income. They were considering setting up [accommodation] for friends and family to stay and make some contribution to the cost of the rescue animals. Originally, they had hoped to make it [a commercial operation] but because they would need to [outlay money] that idea never went forward. Mr Wellstone said that as “part of his healing” he tends to the rescue animals on the farm within the constraints of his back on a particular day. In respect to his back, it is to the point where his “discs are constantly coming out”. He said he is experiencing sciatica most of the time. He is waiting for a phone call from the doctor regarding his recent CT scan.
16.Mr Wellstone said he receives “emotional support” from his wife; for example, after he receives “horrible text messages” and “takes a turn”. When he has a bad turn for three or four days, she is there to provide food and positive emotional support. She “keeps an eye on him all the time”.
17.Ms Mayhall told the Tribunal that “it is all lies”; she was aware of his issue in his 20s which started around the time he started using [steroids] (Mr Wellstone denied he and his wife had ever taken steroids). She said that when they were together, Mr Wellstone would threaten self-harm “if he didn’t get his way”. Before they split, she was not aware Mr Wellstone was taking any medication. In 2017, 2018 and 2019, Mr Wellstone was able to travel overseas with his wife to compete in [competitions]. Ms Mayhall said she had seen Mr Wellstone recently at their son’s graduation; he had been able to drive himself there and showed no signs of ill health. Ms Mayhall said that Mr Wellstone prepared all the documents for himself and his wife in the recent court proceedings and “stood in court for two days” without issue. She said the “judge wasn’t overly impressed”; she said Mr Wellstone could easily work at least 15 hours a week in some form of desk job. Ms Mayhall said that she too has a “bad back”; she takes medications from time to time and makes adaptations at work. There is no reason Mr Wellstone could not do the same.
18.Mr Wellstone said that his wife helped with him with all the paperwork for the Court proceedings; Ms Mayhall could not know anything about that. Mr Wellstone said he was very heavily medicated during those proceedings in order to cope with his anxiety.
19.Ms Mayhall told the Tribunal she continues to work full time as an [occupation 2]. She had to go into considerable debt to pay for her legal fees (approximately $40,000). She has recently consolidated her debt (with her new partner); she very much considers that Mr Wellstone should be paying child support to support her to meet the costs of the children. She did not identify any particularly unusual expenses. The child support case for [Child 1] ended in November of this year when [Child 1] completed secondary school. Mr Wellstone said that Ms Mayhall’s high legal fees were a matter for her; he suggested she did not need to engage a lawyer.
20.In relation to his financial circumstances, Mr Wellstone currently receives DSP. He did not identify any unusual expenses; he said he and his wife live a very basic life.
Consideration
Firstly, I do not consider it appropriate for me in this application to revisit the conclusions of [the named Member] in his decision of [April] 2023 (Tribunal reference [number]). He decided the following conclusion in respect of Reason 8B at paragraph 18 of his reasons:
Mr Wellstone provided witness statements which, in broad terms, supported his oral evidence that the decision to move to a rural property was made when he was providing the majority of the care for the children and Ms Mayhall was assessed to pay $0 in child support. I accept his evidence on that issue. He stated, in effect, that he decided to move to a rural property and cease full-time employment because he believed those changes would ease his anxiety and depression. He explained that his wife was able to work from home and financially support the family. It is worth noting that an assessment notice dated 19 July 2021 showed that from 1 July 2021 the rate of child support payable was based on Mr Wellstone’s 2019–20 adjusted taxable income of $75,317 and Ms Mayhall’s estimate of income of $35,975 per annum. Mr Wellstone was recorded as providing 72% care and Ms Mayhall was recorded as providing 28% care for both children. If the assessment at that time had been based on Mr Wellstone having an income of $0, Ms Mayhall’s rate of child support payable would have increased from $0 to $2,094 per annum. It is unlikely that a major purpose of Mr Wellstone’s resignation from full-time employment where he was earning approximately $83,000 per annum was to receive approximately $2,000 per annum in child support. The situation changed on 30 July 2021 when he stopped providing care for [Child 1]. However, I am satisfied that his decision to resign from his employment was made prior to that change in care. Viewing the evidence as a whole, Mr Wellstone has demonstrated that he did not resign from his employment for a major purpose of affecting the rate of child support payable. Paragraph 117(7B)(c) is not satisfied. I cannot have regard to Mr Wellstone’s earning capacity.
In Cheung v Administrative Appeals Tribunal [2009] FCA 241, the Court observed the following:
[49] Generally speaking, there should not be relitigation without reason of the same issues before the Tribunal where the relitigation is of the same facts and issues already decided. In those circumstances, previous Tribunal decisions would generally be regarded as establishing the matters actually decided and the grounds for determination. It is open to a subsequent Tribunal to regard a previous decision as determinative of an issue and to decide that an issue should not be reopened. The Tribunal has a discretion in those circumstances to take such a course (Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 at 390).
23.I do not consider Ms Mayhall can relitigate the matters arising from Mr Wellstone’s resignation in October 2021.
24.Since that time, there is no evidence that Mr Wellstone has secured employment, and resigned. If that had occurred, it would plainly be appropriate to reconsider Reason 8B.
25.Here, in substance, Ms Mayhall argues that given the passage of time, Mr Wellstone has had ample opportunity to work and has chosen not to do so; she suggests he is not excused by his medical conditions and that he has acted with a view to affecting the child support assessment.
26.In my view, Ms Mayhall is entitled to argue that given it is now some three years since Mr Wellstone resigned his employment, he has had “ample opportunity” to obtain work (assuming he is capable of doing so). I consider that subparagraph 117(7B)(a)(i) is satisfied in the circumstances of the case.
27.That poses the next question: is Mr Wellstone’s decision not to work justified on the basis of his state of health (subparagraph 117(7B)(b)(ii))?
28.Mr Wellstone’s evidence is that his mental health condition has been assessed as being in the “severe” category by Centrelink (which, under the relevant Impairment Tables, provides the 20 impairment points to qualify for DSP). A rating of 20 points requires that a person suffer severe difficulties with at least four of the following categories: self-care and independent living; social/recreational activities and personal relationships; travel and accessing the community; concentration and task completion; behaviour, planning and decision-making; and work/training capacity.
29.Simply put, it is a high bar to meet the qualification requirements for DSP. In most cases of a person being allocated 20 impairment points for a mental health condition alone they would not be deemed to have any work capacity (even part-time).
30.I do not consider Mr Wellstone is likely to understate the impact of his mental health and back issues. The relationship with Ms Mayhall is clearly acrimonious and the conflict has escalated to the Courts. He has a self-interest in promoting the impact of his medical conditions.
31.Nevertheless, I am inclined to accept his contention that he misrepresented to Child Support in May 2022 the extent of his involvement “on the farm” and to not disclose the extent of his mental health issues out of concern for his care arrangements with the children being affected. I do not consider that the correspondence from Mr Wellstone’s mother (folios 392 to 394 of the Child Support hearing papers) is inconsistent with the existence of Mr Wellstone’s medical conditions and his claim that he is not able to work.
32.However, Centrelink (which takes advice from its own health medical practitioners and doctors) has accepted Mr Wellstone’s medical evidence and determined he is qualified for DSP. I do not accept Ms Mayhall’s contention that Mr Wellstone’s mental health condition is “fake”. [Doctor A], in his report of [December] 2023, confirms Mr Wellstone’s conditions and observes him to be under the “watchful eye” of a psychologist. In a report dated 19 February 2024, [a named] psychologist, advised the following: [3]
[3] Folios 353–354 of the Child Support hearing papers.
Depression Anxiety and Stress Scales 21 item version (DASS 21) has been used to monitor progress. [Mr Wellstone's] DASS 21 score indicated severity rating in the extremely severe range for the Anxiety subscale, with a moderate range for Depression and Stress subscales from the initial session. Severity ratings taken in October 2023 and February 2024 indicated no changes in the Anxiety subscale (remaining in the extremely severe range), with an increase to extremely severe range in the Depression and Stress subscales.
Based on his recent presentation, history and lack of progress in mitigating his anxiety, [Mr Wellstone's] prognosis at this stage is unlikely to improve significantly within the next two years with current supports.
Recommendations
I recommend continued supports for [Mr Wellstone], and a psychiatric referral for medication review and supports. I will continue to work with him in improving stress management.
In forming a view about Mr Wellstone’s capacity for work, I am not required to rely on his self-reporting alone. Mr Wellstone’s claims about his mental health are supported by the medical evidence I have referred to and perhaps most persuasively, the decision by Centrelink to assess Mr Wellstone as eligible for DSP. On balance, I accept that the severity of Mr Wellstone’s mental conditions exclude him from being able to work. I find that his decision not to work is justified on the basis of his state of health.
Accordingly, I am not required to consider whether it was a major purpose in Mr Wellstone’s decision-making to affect the child support assessment. I find no basis for a ground to depart on the basis of his earning capacity.
I do not consider the evidence discloses any other circumstances outlined in section 117 which gives a ground to depart from the child support formula.
As I have decided there is no ground to depart, it is not necessary for me to consider whether a departure would be just and equitable and otherwise proper.
Given I have reached the same conclusion as the authorised review officer, the decision under review will be affirmed.
DECISION
The Tribunal affirms the decision under review.
| Date(s) of hearing: | Monday, 25 November 2024 |
| Representative for the Applicant: | Self-represented |
| Representative for the Other party: | Self-represented |
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