Mitchell and Muman (Child support)

[2022] AATA 3523

Mitchell and Muman (Child support) [2022] AATA 3523 (31 August 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC024098

APPLICANT:  Miss Mitchell

OTHER PARTIES:  Child Support Registrar

Mr Muman

TRIBUNAL:Member J Thomson

DECISION DATE:  31 August 2022

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that care percentages of 100% to Miss Mitchell and 0% to Mr Muman be recorded from 13 February 2022.

Note: This will have the effect of Miss Mitchell’s application on 19 April 2022 for an administrative assessment of child support being accepted by the Registrar and the new care percentage for Miss Mitchell will apply in the assessment from that date.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – 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. Miss Mitchell and Mr Muman are the parents of [the child], born 2007.

2. On 24 February 2022, Mr Muman notified Services Australia (the Agency) of a change in care for [the child] on 7 December 2021 from 100% to Miss Mitchell and 0% to Mr Mitchell, to 0% for each parent from 7 December 2021.

3. On 13 April 2022, the Agency made a decision to accept Mr’s notification and determined care percentages of 0% for each parent from 7 December 2021, notified on 24 February 2022.

4. On 19 April 2022, Miss Mitchell applied to the Agency for an administrative assessment of child support payable by Mr Mitchell for [the child] and on 29 April 2022, the Agency made a decision to accept Miss Mitchell’s application for an administrative assessment of child support payable by Mr Mitchell from 19 April 2022 based on care percentages of 100% to Miss Mitchell and 0% to Mr Mitchell from 13 February 2022.

5. On 3 May 2022, Mr Mitchell objected to the Agency’s decision of 29 April 2022, and on 7 June 2022, an Agency objections officer allowed Mr Mitchell’s objection, refusing to record Miss Mitchell as having 100% care of [the child] as reflected in her administrative assessment application of 19 April 2022. The care percentages recorded for the parents remained 0% for each parent from 7 December 2021. The effect of this was that the Agency refused her application for an administrative assessment.

6. On 10 June 2022, Miss Mitchell applied to the Tribunal for review of the objections officer’s decision of 7 June 2022.

7. The Tribunal heard the matter on 31 August 2022. Miss Mitchell attended the hearing via conference telephone and gave affirmed evidence. Mr Mitchell did not attend the hearing despite being notified of the time and date for the hearing, and the hearing proceeded in his absence.

8. The Tribunal had before it documentation provided by the Agency, admitted into evidence and marked Exhibit 1. Miss Mitchell had copies of these documents with her at the hearing.

   ISSUES

9. The statutory provisions relevant to this review are 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 “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 “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 Agency 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 can notify the Agency and a new care determination can be made. However, the legislative test at first instance and on review remains the same; what happened up until the date of notification and what was likely to happen thereafter?

10. The issue which arises in this case is:

    ·      the level of care being provided for [the child] by Miss Mitchell from 13 February 2022 (which will have effect from the date Miss Mitchell applied for an assessment on 19 April 2022 if her application for assessment is accepted by the Agency).

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence given at the hearing by Miss Mitchell and the documentation contained in Exhibit 1 before the Tribunal at the hearing.

2. As noted above, Mr Mitchell did not attend the hearing despite being notified of the time and date of the hearing. The Tribunal attempted to contact him for the hearing on the telephone numbers provided to the Tribunal, but he failed to respond, and the hearing proceeded in his absence.

3. The Tribunal also noted that at page 110 of the Agency’s documentation, Exhibit 1, at the time Mr Mitchell contacted the Agency to lodge his objection to the Agency’s decision of 29 April 2022 that [the child] was back in Miss Mitchell’s care (and therefore to accept Miss Mitchell’s application for an administrative assessment of child support for [the child]), he informed the Agency officer with whom he spoke on that occasion that he did not have contact with [the child] and could not ask her where she was staying.

4. Also as noted above, Mr Mitchell did not attend the hearing and the affirmed evidence given by Miss Mitchell at the hearing was unchallenged.

5. Miss Mitchell gave evidence that [the child] has been in her care, residing with her at her house since 13 February 2022 on a continuous basis.

6. Miss Mitchell said [the child] is enrolled as a Year [Number] student at [High School] (the school) located within walking distance, approximately nine houses from Miss Mitchell’s house.

7. At the hearing Miss Mitchell provided a detailed account of [the child]’s living arrangements since early December 2021 to the date of hearing. She said [the child] has suffered from epilepsy from birth and has required constant treatment for her condition from neurologists and pediatricians. She is currently receiving treatment from both a neurologist and pediatrician at the local hospital, and until recently, has been on medication for her epilepsy condition and associated attention deficit and attention compulsive disorders. Miss Mitchell said her medication affected her psychological disposition causing mood swings and behavioural issues which she said precipitated a period of separation in December 2021 when [the child] went to live at the house of a school friend and her mother, [Ms A], at [Ms A]’s suggestion to give Miss Mitchell and [the child] a ‘much-needed-break’ from each other due to the behavioural problems [the child] was manifesting.

8. However, [the child] soon became homesick, and returned to Miss Mitchell’s care on 13 February 2022, as reflected in Miss Mitchell’s text messages at pages 15 and 140 of Exhibit 1.

9. Miss Mitchell gave evidence that [the child] also suffers from anxiety. However, since coming off her regular epilepsy medication, on advice from her medical specialists, Miss Mitchell said there has been a marked improvement in [the child]’s behaviour at home and at the school where she is currently performing satisfactorily.

10. Miss Mitchell gave evidence that she takes [the child] to her medical appointments. She provided evidence of her involvement in [the child]’s school activities, as the contact parent for [the child]’s school. She provided evidence of communications she received from the school in March 2022, when [the child] was experiencing behavioural difficulties affecting her schoolwork and class relationships and was suspended for a brief period. Miss Mitchell gave evidence that [the child] spent her period of suspension at home with Miss Mitchell, as was the case when [the child] tested positive to COVID-19 on 9 March 2022 while in Miss Mitchell’s care (see Exhibit 1, pages 12,19, 20 and 21). Miss Mitchell also provided copies of [the child]’s school lunch orders she submits to the school and for which she pays (see pages 10 and 11 of Exhibit 1).

11. The Tribunal also cited statements from independent witnesses attesting to Miss Mitchell’s level of care for [the child]: [Mr B] (see pages 13 and 158) and [Mr C] (see pages 14 and 140).

12. In response to questioning from the Tribunal regarding these statements, Miss Mitchell gave evidence that [Mr B] is a former partner of Miss Mitchell’s and the father of her other children living with her and [the child], with whom she has regular contact and who collects and drops off their children for school, and also collects [the child] on the occasions when she has had to work late as part of her casual part-time work at a local [Workplace]. [Mr C] is a close friend with whom Miss Mitchell said she and her children have regular contact. She gave evidence that [Mr C]’s statement was provided to Miss Mitchell on 17 May 2022.  

13. The Tribunal is satisfied that even when [the child] is not in the direct care of Miss Mitchell, the evidence set out above satisfies the requirements set out in the decision of Hughes FM in the case of Polec & Staker (SSAT Appeal [2011] FMCAfam 959 (Polec) defining what constitutes care of a child for the purposes of the Act and the Child Support (Registration and Collection) Act 1988 in the following terms:

    ·     to what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, childcare, education, healthcare, emotional support, supervision, transport and extra-curricular activities?

    ·     To what extent does the person make arrangements for others to meet the needs of the child?

    ·     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 their own needs or have those needs met from other sources?

    ·     To what extent is the child financially dependent or financially supported from other sources?

14. Miss Mitchell gave evidence that since 13 February 2022, she has been providing [the child] with financial and emotional support, accommodation, food and her other daily necessities, and has not been in receipt of any child support from Mr Mitchell since applying for administratively assessed child support on 19 April 2022.

15. The Tribunal is satisfied the evidence on balance is that Miss Mitchell has been providing 100% care for [the child] from 13 February 2022 and Mr Mitchell has not provided any care for [the child] since that date.

16. As the Tribunal has reached a different conclusion to that reached by the objections officer in the decision under review, the Tribunal sets aside that decision and, in substitution, decides that care percentages of 100% to Miss Mitchell and 0% to Mr Mitchell should be recorded from 13 February 2022, with effect from the date of Miss Mitchell’s child support assessment application on 19 April 2022. The effect of this care decision should be that Miss Mitchell’s application on 19 April 2022 for an administrative assessment of child support payable by Mr Mitchell should be accepted by the Agency.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that care percentages of 100% to Miss Mitchell and 0% to Mr Mitchell be recorded from 13 February 2022.

Note: This will have the effect of Miss Mitchell’s application on 19 April 2022 for an administrative assessment of child support being accepted by the Registrar and the new care percentage for Miss Mitchell will apply in the assessment from that date.