McPherson and Thring (Child support) - [2022] AATA 2111

McPherson and Thring (Child support) [2022] AATA 2111 (5 May 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER: 2022/AC023350
APPLICANT: Ms McPherson

OTHER PARTIES: Child Support Registrar

Mr Thring

TRIBUNAL: Member D Tucker

DECISION DATE: 5 May 2022

DECISION:

The decision under review is affirmed. (This means the application was not successful.)

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 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

Ms McPherson and Mr Thring are the parents of three daughters, [Child 1], [Child 2] and [Child 3]. [Child 3’s] care is the subject of this application for review. Ms McPherson is the parent liable to pay child support.
From 26 January 2021, the Department of Human Services – Child Support (CSA) recorded Mr Thring as having a percentage of care of 100% and Ms McPherson having a percentage of care of 0% for [Child 3].
According to the CSA’s records, on 29 November 2021, Ms McPherson gave notice that a change in care had occurred such that [Child 3] had not been in the care of either parent as she had left Mr Thring’s care to move in with her sister [Child 2] in Melbourne.
The same day Mr Thring confirmed that [Child 3] had moved in with [Child 2] in Melbourne on 27 November 2021. However, he disagreed that there had been a change in care. He explained that he continued to be financially responsible for supporting [Child 3] including paying for her phone, braces, private healthcare, and sending money to [Child 2] to meet [Child 3’s] daily living expenses. He stated that he had enrolled [Child 3] in a school in Melbourne and that she would continue living with [Child 2].
On 9 December 2021 Ms McPherson argued that [Child 3’s] living situation was not safe, as [Child 2] suffers from mental health issues. She also disputed whether Mr Thring was really meeting his parental responsibilities.
On 30 December 2021 the CSA decided to refuse Ms McPherson’s request to reflect the care of [Child 3] as 0% to both parents.
On 5 January 2022 Ms McPherson lodged an objection to this decision and provided a further statement to the CSA. She argued that Mr Thring was no longer responsible for [Child 3] as she was living independently in another state.
On 21 January 2022 Mr Thring responded to Ms McPherson’s objection and again asserted that he continues to exercise his parental responsibilities and remains the main decision-maker for [Child 3], and was still meeting her living expenses, costs of orthodontic treatment and school fees. He also provided receipts for some of these expenses.
The CSA received a statement from [Child 2], confirming that [Child 3] had been living with her since 27 November 2021.
Ms McPherson questioned the adequacy of these receipts, as they did not account for all the child support that Mr Thring should be spending on [Child 3]. She also questioned what weight could be assigned to [Child 2’s] statement, given that she suffered from poor mental health.
The CSA also checked whether [Child 3] was receiving any income support from Centrelink and found that she was not.
The CSA was not satisfied that there had been a change in care and decided to disallow Ms McPherson’s objection.
Ms McPherson sought further review from this Tribunal and gave evidence at the hearing along with Mr Thring on 5 May 2022. The Tribunal also considered documents provided by Child Support.

LEGISLATION AND ISSUES

The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).
The Tribunal also referred to the Australian Government’s Child Support Guide (the Guide) in making this decision.[1] The Guide sets out the approach taken by Child Support to its consideration of social security matters. It expresses policy and the Tribunal is not bound by such policy, however, in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, the Full Court of 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 relevant legislation. The Tribunal adopts this approach in the present matter.
[1] >
The question the Tribunal must resolve is whether there a change in care for [Child 3] that warrants a revocation of the existing care determination, and if so, should a new determination be made?

Was there a change in the care of [Child 3]?

The Tribunal is required to consider the actual care of [Child 3] during the care period and the care period, having regard to all the circumstances (section 50 of the Act).
The issue in dispute is whether Mr Thring continued care for [Child 3] after she moved to Melbourne to live with [Child 2].
The issue of delegated care typically arises where a child is residing with a non-parent. On the issue of delegated care, the Full Federal Court in Secretary, Department of Social Security v Lowe (1999) 56 ALD 609 noted:
After all, most children will be at school for a large part of each year, and a few may board for weeks or months at some institution, such as a hospital, or a boarding school. Children stay at times with relatives. The delegation of daily care involved in such arrangements need not be regarded as denying the enduring role of a caring parent. While a child is at school, or in hospital, or staying with a relative, the child may remain, in a perfectly intelligible sense, “in the … care” of a parent or parents.
Child Support’s policy covering the administration of the child support scheme is contained in the Guide which includes the following at paragraph 2.2.1:
Determining whether care exists
In most cases, it will be relatively clear whether and to what extent a person is caring for a child. However, where there is doubt, CSA will consider whichever of the following are relevant to the particular case.
•To what extent does the person have control of the child, including having overall responsibility for the child and making:
omajor decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities; and
oarrangements for others to meet the needs of the child.
•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?
•To what extent does the person pay for the costs of meeting the needs of the child?
•To what extent does the person otherwise provide financial support for the child?
•To what extent does the child provide for his or her own needs or have those needs met from another source?
•To what extent is the child financially independent or financially supported from another source?
Ms McPherson’s evidence can be summarised as follows:
·   [Child 3] resided with her until she was 16 years old. After some conflict she left suddenly to reside with her father. Since then she has had no direct contact and she feels that their relationship has deteriorated.
·   While [Child 3] stayed with Mr Thring, she was not adequately supervised as Mr Thring requires overnight [medical treatment] during which he is not at home.
·   [Child 3] subsequently moved out of her father’s home to reside with her adult sister [Child 2] in Melbourne and was enrolled in a new school.
·   Ms McPherson thought it was not acceptable for [Child 3], as a child, to be living interstate without a parent present. She expressed concern that [Child 3] was inadequately supervised, as [Child 2] suffers from mental health issues and does full-time shift work.
·   Ms McPherson also expressed concern that [Child 3] might be exposed to people who would be a bad influence and noted that there were other people sharing accommodation with [Child 2] that she has not met. In particular she noted that [Child 2’s] partner is the manager of a [business 1] in which [Child 3] is employed.
·   Ms McPherson is also concerned that [Child 3] had a casual job in licensed premises, which she believed to be illegal as she is under 18.
·   Most relevantly Ms McPherson questioned whether the child support she was paying to Mr Thring was used to care for [Child 3]. She stated that she had not received sufficient evidence to verify that the child support was used appropriately.
·   Ms McPherson also thought it was inappropriate that [Child 3] received direct payments from Mr Thring, as she [has a specified condition] and struggles with handling money appropriately. Ms McPherson also claimed that [Child 3] has previously smoked marijuana and fears that the money she receives from her father might be used inappropriately. Ms McPherson argued that if [Child 3] is to be paid money directly, why is it necessary to do this through the child support system.
Mr Thring’s evidence can be summarised as follows:
·   Mr Thring denied Ms McPherson’s assertion that he had enabled [Child 3’s] departure from her mother’s home. He stated that because Ms McPherson had listed [Child 3] as a missing person he had taken [Child 3] to the police station to clear that up. He also denied that [Child 3] was not supervised while he was undergoing [medical treatment], as she was at home with Mr Thring’s partner.
·   Mr Thring stated that [Child 2] has never been diagnosed with a mental illness. He observed that she works full-time as a trained [occupation 1] and has no difficulty holding down her employment. She does suffer from a joint condition which has required surgery to her shoulders.
·   Mr Thring referred to various expenses that he had met on [Child 3’s] behalf, such as buying her a bed and mattress when she moved in with [Child 2], medical bills and orthodontic expenses.
·   Mr Thring observed that he was not entitled to explanations from Ms McPherson about how she spent the child support he previously paid to her. Accordingly, he does not feel he should be required to demonstrate the details of how he spends the child support he now receives from Ms McPherson.
·   Despite this, Mr Thring explained that around the 10th of each month he receives a payment from child support, and that within 24 hours he transfers all of these funds into [Child 3’s] bank account.
·   Mr Thring has occasionally transferred funds into [Child 2’s] bank account when he was concerned about [Child 3’s] spending patterns. However, he denied that [Child 3] generally struggled to handle her budget and explained that she and [Child 2] have a joint bank account into which they contribute money to pay their rent and utility bills. He is pleased with [Child 3’s] growing proficiency in handling her own budget.
·   Mr Thring read from his bank statements (not before the Tribunal) examples of amounts of money he had transferred into [Child 3’s] bank account – $362 on 11 February 2022, $623 on 12 March 2022, and $1,007 on 14 April 2022. Mr Thring offered to provide copies of his bank statements to the Tribunal, and stated that he had adopted the policy of transferring child support payments directly to [Child 3] to stave off the anticipated accusation that the money he received was not being spent on her care.
·   Mr Thring told the Tribunal that he speaks to [Child 3] and [Child 2] either every day, or every other day. He talks to her about her well-being, her progress at school, and discusses decisions that she needs to make. He stated that [Child 3] has installed software on her phone that keeps him informed of her location, so he can make sure she isn’t anywhere “where she is not supposed to be”.
·   Mr Thring said that other members of his family have visited [Child 2] and [Child 3] and stayed over at their apartment. He has met [Child 2’s] partner, [named], who he approves of. While he concedes that [Child 2] works shift work, she has another flat mate, a young woman, who also provides some level of supervision for [Child 3].
·   Mr Thring explained that [Child 2] and [Child 3] are planning to relocate to new accommodation which will include [Child 2’s] partner and his small child.
·   Regarding [Child 3’s] employment, Mr Thring stated that she works casually in licensed premises one night per week, which he described as a restaurant rather than a [business 1], and that there is no legal prohibition to her doing so. He thought it was not necessary for him to know how much [Child 3] earns from this work, given her age and level of independence.
The Tribunal put it to Mr Thring, that it could be construed that [Child 3] was now living independently, rather than under his care, given that she lives interstate, earns her own money, and is not subject to his day-to-day supervision.
Mr Thring rejected this, on the basis that he is still in frequent contact with [Child 3] and [Child 2], and that he maintains an overarching decision-making role about how [Child 3] spends her time and money, and the company she keeps, in a manner that is appropriate for a 17-year-old child.
The Tribunal considered the evidence provided by Ms McPherson and Mr Thring in conjunction with the principles set out in the relevant authorities and the Guide.
Based on this, the Tribunal finds it likely that from 27 November 2021 there was no change in care in relation to [Child 3], based on these findings:
·    There is insufficient evidence to conclude that [Child 2] assumed parental responsibility for [Child 3] when she moved into her home in Melbourne. It is more accurate to characterise [Child 2’s] role as a delegated carer, as she provides day-to-day supervision with Mr Thring’s direction.
·    [Child 3] is not living independently and is allowed a level of autonomy by Mr Thring that is usual for a person of her age. Mr Thring retains an overarching responsibility for deciding how [Child 3] will spent her time, money or with whom she can associate.
·   The tribunal accepts Mr Thring’s evidence that he routinely transfers the child support he is paid to [Child 3] (or [Child 2]) for her upkeep and there was therefore no significant change in the financial support he provided.
·   While [Child 3] has a casual job that provides her with a small income, as is usual for someone her age, she is not financially independent and is not in receipt of income support from Centrelink.
Ms McPherson clearly loves [Child 3] deeply and is concerned for her wellbeing. However, as the Tribunal explained to both parties, it cannot determine where or with whom [Child 3] should live. The Tribunal’s task is to determine a percentage of care based on actual care.

DECISION

The decision under review is affirmed. (This means the application was not successful.)