Michell and Dudfield (Child support)

[2023] AATA 1186

Michell and Dudfield (Child support) [2023] AATA 1186 (22 March 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/MC025090

APPLICANT:  Mr Michell

OTHER PARTIES:  Child Support Registrar

Mrs Dudfield

TRIBUNAL:Senior Member K Dordevic

DECISION DATE:  22 March 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the administrative assessment of child support is to be amended to reflect that Mr Michell has had 100% care of a relevant dependent child from 19 April 2020.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – whether there was a relevant dependent – 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 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. Mrs Dudfield (the mother) and Mr Michell (the father) are the parents of two children. Most recently, there is a child support assessment in place in respect of the children from 10 March 2017.

2. The father is also the parent of Master Michell Michell (the child), born on [date] April 2020, who is not currently the subject of a child support assessment. On 21 April 2020 the father notified Services Australia – Child Support (the Agency) of child’s birth. The relevant dependent allowance was reflected in the assessment from the date of the child’s birth. The mother lodged an objection to that decision on 29 April 2020. The objection was allowed on 24 July 2020 on the basis that the father did not have shared care of the child; therefore, the relevant dependent allowance was removed from the administrative assessment.

3. On 3 July 2020 the father lodged a departure application with the Agency on the basis that, among other things, he had a legal duty to support his wife and the child who resided in [Country 1] and this significantly impacted on his capacity to support the children of the assessment. The Agency determined that there was no ground to depart from the administrative assessment and so the departure application was refused. The father’s objection to that decision was disallowed and his application to the Administrative Appeals Tribunal (the Tribunal) (differently constituted) was affirmed on 3 June 2021.

4. On 17 March 2022 the father lodged a further departure application, advising the Agency that he was providing financial assistance to his wife and child in [Country 1]. On 14 June 2022 the Agency made the decision to record the father as having a relevant dependent child, with effect from 17 March 2022. In a separate decision made on the same day, a decision maker determined that the father’s annual rate should be decreased for the period 18 September 2020 to 16 March 2022 to reflect the relevant dependent allowance.

5. The mother sought review of these decisions. On 2 November 2022, and relevant to this application, an objections officer determined that for the period 18 September 2020 to 16 March 2022 the annual rate of child support payable by the father was to decrease by $1,900 per annum, on the basis that this represents the relevant dependent allowance. In a separate objection decision made on the same day, the mother’s objection to the relevant dependent allowance decision was partly allowed, whereby the assessment was amended to reflect the father having 50% care of the relevant dependent child from 17 March 2022. It is this decision that is before this Tribunal. An original decision was also made that from 6 September 2022 the father had 100% care of the relevant dependent child.

6. On 21 November 2022 the father applied to the Tribunal for review of the objection decision. The father lodged a separate application in regard to the departure decision and it awaits determination by this Tribunal (differently constituted).

7. This matter was heard on 15 February 2023. Both the mother and father gave evidence on affirmation by conference telephone. The Agency provided the Tribunal and the parties with a bundle of documents relevant to the review (folios 1 to 607) and additional documents were provided by the mother (B1 to B2). At the commencement of the hearing, the father sought an adjournment and reinstatement, stating that he has a letter denying his application for his son, separate to the departure application. The Tribunal formed the view that the father had (understandably) conflated the departure application and his relevant dependent child application. It was on this basis that the Tribunal denied the father’s request for the matter to be rescheduled.

8. The matter was deferred and on 24 February 2023 the Tribunal, pursuant to subsection 39AA(5) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), ordered the Child Support Registrar to make written submissions to the Tribunal by 10 March 2023 to address the following issues:

   ·The basis on which the objections officer determined Mr Michell had only 50% care of his child Master Michell Michell from 17 March to 5 September 2022;

   ·That in reaching this care determination, did the objections officer make a finding or have evidence that Mr Michell was separated from his wife (noting that the objection decision refers to the child Master Michell Michell residing in a reciprocating jurisdiction);

   ·The basis on which the objections officer determined Mr Michell had 100% care of his child Master Michell Michell from 6 September 2022; and

   ·The date of which the Registrar first became aware that Mr Michell had a child residing in [Country 1].

9. The Child Support Registrar responded to the order on 10 March 2023 (folios C1 to C12).

10. The Tribunal issued a further order to the Child Support Registrar, pursuant to section 33 of the AAT Act on 14 March 2023, to provide the following documents by 29 March 2023:

    ·A copy of the objection decision dated 24 July 2020 in respect of Mr Michell’s application for a relevant dependent child allowance; and

    ·An unredacted copy of folio 231 of the hearing papers prepared and provided by the Agency in respect of matter 2020/MC020546, and specifically the name of the dependent of the payer (Mr Michell at that time) listed is the screen “Children Involved in a Case”.

11. A response was received from the Child Support Registrar on 21 March 2023 (at folios C14 to C44).

12. The Tribunal reached its decision on 22 March 2023.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) with guidance also provided via government policy contained in the Child Support Guide (the Guide).

2. The issues which arise in this case are whether the father has care of a relevant dependent child and, if so, his percentage of care and the date from which his care commenced.

CONSIDERATION

1. In brief, a child support assessment is calculated in accordance with a formula prescribed under Part 5 of the Act. Several variables are used to calculate the amount of child support one parent pays the other. Variables include a “child support income amount” for each parent which is calculated in accordance with the method stipulated under section 41 of the Act. Relevant to that calculation is whether a parent has a “relevant dependent child”. If a parent does, then an amount (calculated in accordance with section 46) is deducted for that child when calculating the parent’s child support income amount.

2. Section 73A of the Act relevantly states:

   73A Registrar becoming aware of relevant dependent child

   (1) If:

   (a) an administrative assessment of child support is in force in relation to a parent; and

   (b) the Registrar is later notified, or otherwise becomes aware, of the fact that the parent has a relevant dependent child who was not taken into account for the purposes of making the assessment;

   then, for the purposes of working out the parent’s relevant dependent child amount under section 46, the parent is taken to have the relevant dependent child:

   (c) if the Registrar was notified, or otherwise became aware, of the fact that the child is a relevant dependent child of the parent within 28 days after the day on which the child became such a child—on and from the day the child became such a child; or

   (d) if paragraph (c) does not apply and the Registrar was notified, or otherwise became aware, of the fact within 28 days after giving a notice under section 34 (giving notice of successful application)—on and from the day on which the application was made; or

   (e) if neither paragraph (c) nor (d) applies—on and from the day the Registrar was notified, or otherwise became aware, of the fact that the child is a relevant dependent child of the parent.

   (2) If the parent is a resident of a reciprocating jurisdiction, subsection (1) has effect as if the references in paragraphs (1)(c) and (d) to 28 days were references to 90 days.

3. A “relevant dependent child” is defined in section 5 of the Act as follows:

   relevant dependent child, in relation to a parent, means a child or step-child of the parent, but only if:

   (a) the parent has at least shared care of the child or step-child during the relevant care period; and

   (b) either:

   (i) the child or step-child is under 18; or

   (ii) if the child or step-child is not under 18—a child support terminating event has not happened under subsection 151D(1) in relation to the child; and

   …

   (e) in the case of a child—the parent is not assessed in respect of the costs of the child (except for the purposes of step 4 of the method statement in section 46).

4. A person has “shared care” of a child, under subsection 5(3) of the Act, if the person’s percentage of care for the child during a care period is at least 35%.

5. Chapter 2.4.6 of the Guide relevantly states that determining the relevant dependent amount, at Step 2, the parent’s percentage of care must be determined. It goes on to state:

   …(Note: A parent who lives fulltime with a relevant dependent child has 100% care of that child, even if they also live with a new partner. The new partner's income is omitted from the calculation of the relevant dependent child amount, and therefore so is any contribution they make to the costs of the relevant dependent child).

6. At hearing the father explained that, taking a broad view of the law, either he has a relevant dependent child or he does not; the finding that he has only 50% care of the child is incorrect. Further, given the level of financial support he provided the child whilst he resided in [Country 1] it is only right that it be determined that he had 100% care of the child. To not recognise this is incorrect and misleading and denies his son’s existence.

7. The mother’s position is that the decision under review is correct as it takes into account the standard of living in [Country 1’s region]. She does not dispute the child’s paternity. She drew the Tribunal’s attention to a decision made by this Tribunal (differently constituted) on 3 June 2021[1] which determined that the father’s capacity to support their children was not significantly reduced by his legal duty to maintain another person.[2]

   [1] At folios 58 to 64

   [2] At folio 64

8. In submissions to the Tribunal, the Agency stated that the objections officer determined that the father had at least shared care of the child by taking a “broad approach”[3] and so determined that it was fair and reasonable to determine that the father provided 50% care of the child prior to the child’s arrival in Australia and 100% thereafter.

   [3] At folio C5

9. As outlined above, in this case the fact as to whether the father has a relevant dependent child has been contested for some time. However, what is not in dispute is that the father is the biological father of the child born on [date] April 2020 and that on 21 April 2020 the father notified the Agency of this fact.[4] It is also not in contention that during the period 19 April 2020 to 5 September 2022 the father was only in the same country as the child for a period of some four months (November 2021 to March 2022). The child and his mother relocated to Australia on 6 September 2022 and have since lived with the father. There is nothing to suggest that the father and his wife, though physically separated, were not a member of a couple throughout the child’s life and up until the day of hearing. The Tribunal finds accordingly.

   [4] At folio C7

10. 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?

11. The father gave the following account of his care of the child. Due to COVID-19 lockdowns he was unable to attend the child’s birth. He first met his son in November 2021 when he travelled to [Country 1]. He returned to Australia between 9 to 11 March 2022 and his wife and son joined him on 6 September 2022. He has been the sole financial provider for the child since birth and he has provided evidence of the same.

12. The father’s evidence is that his wife and child were completely financially dependent upon him; his wife has no family or other supports in [Country 1]. He purchased a car for his wife, as his son required transportation to hospital. He also purchased a bath and air-conditioning for the child, so the child’s body temperature could be regulated following diagnosis of [Medical condition 1]. The air-conditioner and bath remain in the rental home where his wife and child were living; his rent was credited to reflect these improvements. He was unable to recall the rental costs and to the best of his recollection thought that the credit was for about 1.5 years rent.

13. The father provided corroborating evidence of the purchase of a motor vehicle on 26 November 2021[5] for [amount], the air-conditioner and bath for a total of [amount] on 3 January 2022[6] and a medical payment made [of] [amount], noting that the date indicates that it was in 2022 though the month is somewhat obscured. The Tribunal accepts the father’s submissions regarding these costs in AUD, being $7,128, $6,415 and $4,020 respectively.[7] At hearing the father stated that he had incorrectly referred to a medical payment of [amount] as his child’s hospital costs,[8] explaining instead that it related to his wife’s medical [costs] . After further consideration, the Tribunal is not satisfied that this is the case; the receipt suggests that it was for the child’s [Medical condition 1] .[9] The Tribunal reached this conclusion with greater certainty on the basis of a medical certificate from [a] Health Centre, [Country 1] which states that the child was hospitalised for [Medical condition 1] of unknown origin [for] the period 12 to 17 April 2022.[10] The father also provided a screenshot of [money] transfers[11] apparently made to his wife during the period from March to 22 April 2022, totalling $3,169.06 AUD. The transfer dates are somewhat obscured on the screenshot in evidence, but the Tribunal accepts the father’s evidence regarding the dates that these transfers were made.

    [5] At folio 130

    [6] At folios 131 to 132

    [7] At folio 128

    [8] At folio 128

    [9] At folio 138

    [10] At folios 136 to 137

    [11] At folio 129

14. The Tribunal is satisfied that since his birth the child had no other sources of financial support apart from the father. His wife, who provided day to day physical care of the child, was also solely financially dependent on the father. The Tribunal also finds that the sums transferred [by] the father were applied to meet his wife and child’s needs, including accommodation, clothing, food, transport and health care. It is on this basis that the Tribunal concludes that the father shared the care of the child from the child’s birth, equally with the child’s mother, with whom he has an ongoing relationship. It is on this basis that the Tribunal finds, pursuant to section 50 of the Act, the father had 100% care of the child from the child’s birth.

15. The Tribunal finds that that the decision under review (being the objection decision of 2 November 2022) determined that the father had 50% care of the relevant child from the child’s birth, but that this is only to be reflected in the administrative assessment from 17 March 2022, based on a finding that this was the date on which the father first advised of the relevant dependent child. As a matter of fact, the Agency first became aware of the existence of his relevant dependent child on 21 April 2020, [number] days after his birth[12] and not on 17 March 2022 as the objection officer determined.

    [12] At folio C6

16. The objection decision under review varies the earlier objection decision dated 24 July 2020, which determined that the father did not have shared care of the child from 19 April 2020. Thus, the Tribunal determines that the child support assessment must be amended to reflect that the father had a relevant dependent child from 19 April 2020 pursuant to section 73A of the Act.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the administrative assessment of child support is to be amended to reflect that Mr Michell has had 100% care of a relevant dependent child from 19 April 2020.