O’Cawley and Jayes (Child support)

[2022] AATA 3512

O’Cawley and Jayes (Child support) [2022] AATA 3512 (23 August 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/HC023972

APPLICANT:  Ms O’Cawley

OTHER PARTIES:  Child Support Registrar

Mr Jayes

TRIBUNAL:Member C Breheny

DECISION DATE:  23 August 2022

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – 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

1. Ms O’Cawley and Mr Jayes are the separated parents of twins,  [named], born January 2006. [The first] is a transgender child and is now known as “[Child 1]”. A child support case has been registered with Services Australia – Child Support (Child Support) since 15 February 2006, and child support has been payable on the basis that Ms O’Cawley had 100% care of [Child 1] and [Child 2]. Mr Jayes is liable to pay child support to Ms O’Cawley.

2. On 26 November 2021, Mr Jayes contacted Child Support and advised that both [Child 1] and [Child 2] had left Ms O’Cawley’s home and thus neither parent had care of the children. Ms O’Cawley disagreed, noting that whilst [Child 1] had not been residing with her since about April 2021 and [Child 2] had recently left home, she is continuing to provide care for both children. On 19 January 2022 Mr Jayes notified that [Child 1] and [Child 2] had been living with him since 27 December 2021, but [Child 2] left his care again on 15 January 2022 to stay with her maternal grandmother.

3. On 10 March 2022, a decision was made such that neither parent had care of [Child 1] from 21 April 2022 and neither parent had care of [Child 2] from 16 November 2021. A further decision was made that Mr Jayes had 100% care of [Child 1] from 27 December 2021. On 23 March 2022 Ms O’Cawley objected to that decision and on 25 May 2022 a Child Support objections officer decided to disallow the objection.

4. On 26 May 2022, Ms O’Cawley applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal for an independent review of the objection decision. The application was heard on 23 August 2022. Ms O’Cawley and Mr Jayes attended the hearing by conference telephone and gave evidence on affirmation. I had before me the Statement and Documents provided by Child Support pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, received on 23 June 2022 (documents numbered 1–260).

ISSUES AND CONSIDERATION

1. The relevant legislation is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).

2. Sections 49 and 50 of the Act provide that a care determination must be made following an application for a child support assessment and requires consideration of the actual, or likely, pattern of care that the parents will have in relation to a child in a particular care period. Section 55C of the Act contains a table that is used to work out a person’s cost percentage.

3. In this case, Child Support records indicate that since 2006, child support liability had been calculated on the basis that Ms O’Cawley had 100% and Mr Jayes had 0% care of the children (folio 240). Records also show that Mr Jayes contacted Child Support on 26 November 2021 to advise that neither [Child 1], nor [Child 2] were in Ms O’Cawley’s care and both children were living in a refuge (folio 30).

Ms O’Cawley’s evidence

1. Ms O’Cawley stated that [Child 1] has significant mental health issues and his behaviour was uncontrollable and potentially dangerous. He had delusional thoughts and sexually abused his sister. He had been lying and stealing from the house but would not accept that he had done anything wrong.

2. Ms O’Cawley said she decided to hide a camera in her home to “catch [Child 1] out” and confront him with video evidence. When she showed him the evidence, they had a “big argument”. [Child 1] went to his room but she found out that he left home on that day to stay with his girlfriend.

3. Ms O’Cawley agreed that [Child 1] left her house on 21 April 2021 and that he had been in Mr Jayes’s sole care from 27 December 2021. She contended, however, that she continued to provide care for [Child 1] between April 2021 and December 2021 and as such she should have 0% care of [Child 1] from 27 December 2021.

4. Ms O’Cawley stated that she was advised to take out a “Restraint Order” against [Child 1] to protect her and her family. The order prohibited [Child 1] from coming to her home or to approach family members within 10 metres or contact them. Ms O’Cawley said she specifically excluded herself from the “no contact” order, as she was trying to keep in touch with [Child 1] to help him.

5. Ms O’Cawley said that she met with [Child 1’s] health professionals (his care team) on 5 July 2021 to discuss how she could assist [Child 1]. She said she continued to text [Child 1] to try and remain in contact. She also met him on about six occasions between July and December 2021 in a coffee shop to discuss how she could help him. [Child 1] asked her to revoke the restraint order, which she did [in] December 2021. She did this because [Child 1] wanted to spend Christmas with the family. Ms O’Cawley said that [Child 1] did spend Christmas Day afternoon at her place before Mr Jayes took the children interstate on 27 December 2021.

6. Ms O’Cawley said that she provided consent for any medical treatment that [Child 1] needed. She gave [Child 1’s] girlfriend’s mother about $100 ($50 on two occasions) to help her financially and she would also give [Child 1] $50 or $100 each time they met and she would buy groceries and clothes for him. Ms O’Cawley said that she did not keep any records of the dates or the financial assistance she provided. She said she tried her best to care for a child that did not want her to care for him.

7. Regarding her daughter’s care Ms O’Cawley said that [Child 2] was very relieved when [Child 1] left the home. [Child 2] became a “different person” once [Child 1] was gone. Ms O’Cawley said that [Child 2] has been diagnosed with [specified conditions] and she has a mild intellectual disability. [Child 2] receives assistance from the NDIS.

8. Ms O’Cawley said that [Child 1] invited [Child 2] to a party in November 2021 and she was assaulted at the party. [Child 1] then told her that she ([Child 2]) needed to leave home and he gave her information about a women’s refuge.

9. [Child 2] came home and told Ms O’Cawley that she was leaving and that there was “nothing Ms O’Cawley could do about that”. [Child 2] left home on 21 November 2021. Ms O’Cawley noted that both children were aware of the restraint order and [Child 2] did not tell her that she was going to meet [Child 1]. [Child 2] said that she was going for a “sleepover” at a friend’s place and Ms O’Cawley had no reason to doubt her.

10. Ms O’Cawley said she met with [Child 2’s] NDIS worker about four times and she also met with [Child 2]. She gave [Child 2] about $50 each time and took her shopping. Ms O’Cawley said that [Child 2] came home for Christmas Day before she left on 27 December 2021 with Mr Jayes. Ms O’Cawley noted that she did not have any records of the dates she met with [Child 2] or the financial assistance she provided for her.

11. [Child 2] left Mr Jayes’s home on 15 January 2022 and stayed with her grandmother (Ms O’Cawley’s mother) until she could return to Ms O’Cawley’s home on 19 January 2022. Ms O’Cawley acknowledged that Child Support made a subsequent care decision that she had 100% care of [Child 2] from 15 January 2022, as notified on 7 March 2022. She believes however that this decision is incorrect in that there was never a care change for [Child 2] and she should continue to have 100% care from 12 November 2021.

Mr Jayes’s evidence

1. Mr Jayes stated that he had not had any contact with [Child 1] and [Child 2] for many years. He was surprised that [Child 1] contacted him in late November 2021. [Child 1] told him that both he and [Child 2] left Ms O’Cawley’s home and were living in refuges. They had also been granted Centrelink payments. The refuge worker apparently suggested [Child 1] should try and contact him (Mr Jayes). [Child 1] contacted his (Mr Jayes’s) former workplace and they contacted him.

2. Mr Jayes said that the refuge workers told him that [Child 1] was a “great kid” and they had no issues with him. [Child 1] also told him that he had had no contact with Ms O’Cawley until December 2021, when he asked for the restraint order to be lifted. [Child 1] denied having received any financial assistance from Ms O’Cawley. Mr Jayes said he had to purchase new shoes for [Child 1] and a mobile phone and he also had to buy clothes for [Child 2] when she came to stay with him.

3. Mr Jayes agreed that [Child 2] left his home again on 15 January 2022 after having been contacted by Ms O’Cawley’s family and “urged” to return to Ms O’Cawley.

Ms O’Cawley: additional evidence

1. Ms O’Cawley provided the following additional evidence:

   ·An unsigned statement from her partner, [Mr A] (folio 102). The statement is very similar to the one provided by Ms O’Cawley (folio104) and it indicates that

   o[Child 2] has been diagnosed with mild intellectual disability, [and specified conditions] and is linked in with services through the NDIS.

   o[Child 2] left Ms O’Cawley’s home under “coercive instruction” from Mr Jayes and from her brother [Child 1] and without Ms O’Cawley’s consent.

   o[Child 2] stayed with her grandmother from 15 January 2022 and Ms O’Cawley paid for the flight back home.

   oThe women’s shelter staff “fabricated false evidence” against Ms O’Cawley so that [Child 2] would qualify for Centrelink payments.

   oWhilst [Child 1] was not in Ms O’Cawley’s physical care between 21 April and 27 December 2021 Ms O’Cawley “never stopped trying to access medical services for [Child 1] and contributed to him financially (food, cash, clothing, a new phone).

   ·A statement from “[Ms B]” who is the NDIS support worker for the O’Cawley family (folios 107–108). [Ms B] states that she has been working with [Child 2] and the family since 7 September 2021. She writes that Ms O’Cawley made “every attempt” to get [Child 2] to come home and that she “supported [Child 2] financially, emotionally and medically when she was away from home between 26 November 2021 and 27 December 2021”. [Ms B] further states that “I saw that Ms O’Cawley was attempting to support [Child 1] emotionally and medically between 21 April and 27 December 2021”.

   ·Ms O’Cawley’s statement dated on 23 March 2021 (folio 159) that she pays rent of $540 per week or $2,160 per month. She noted that [Child 1’s] and [Child 2’s] share of the rent was $720 per month ($360 x 2), which she still needed to pay although the children did not reside at the home.

   ·First page of a court order made in 2018 stating that “the children shall live with the mother” (folio 176).

   ·A psychological assessment tool completed by Ms O’Cawley on 20 August 2021 (Family Assessment Device) as part of [Child 1’s] treatment process (folios 190–198)

   ·A consent form signed by Ms O’Cawley on 23 December 2021 for [Child 1] to commence [specified] therapy (folios 178–179).

Mr Jayes: additional evidence

1. Mr Jayes provided the following additional evidence:

   ·Letter from [Agency 1] (crisis accommodation for young people at risk) dated 11 January 2022, stating that [Child 1] had been residing at the centre from 21 April 2021 to 27 December 2021, that he had been referred by the social worker at his high school and that he had been granted youth allowance (unable to live at home) from 27 April 2021 (folio 46).

   ·[Agency 1] “Intake Assessment” dated 21 April 2021 and signed by [Child 1] (folios 53-54).

   ·Centrelink notice addressed to [Child 1] indicating special benefit payments from 28 April 2021 (folio 52).

   ·Care Team meeting report dated 5 July 2021 and attended by Ms O’Cawley (folios 55-59). The report indicates

   oThat Ms O’Cawley described [Child 1’s] problematic behaviours;

   oThat Ms O’Cawley believes [Child 1] no longer wants her to be involved due to her understanding of the truth;

   oThat Ms O’Cawley had no contact with [Child 1] but had written him a detailed text message about the restraint order;

   oThat Ms O’Cawley felt it was unfair that professionals were not dealing with her;

   oThat [Child 1’s] accommodation at [Agency 1] is stable and that there had been no incidences of bad behaviour, no drug use, no alcohol use;

   oThat Ms O’Cawley wanted to get psychological support for [Child 1] for a long time but he was not allowing it;

   oThat Ms O’Cawley was willing to be [Child 1’s] guardian in relation to his ongoing medical treatment but it may be difficult for her to contribute financially as she was no longer receiving benefits for [Child 1][1];

   oThat [Child 1] enrolled himself at another high school as an independent person.

   ·Copy of the “Restraint Order” dated [in] July 2021 (folio 60).

   ·Copy of “Interim Restraint Order” dated [in] June 2021 (folio 69).

   ·Ms O’Cawley’s application to revoke the restraint order, dated [in] December 2021, as [Child 1] was now medicated and had shown great improvement” (folio 62–66).

   ·Flight itinerary for [Child 1], [Child 2] and Mr Jayes [interstate], departing on 27 December 2021 (folio 71).

   ·Signed letter from [Ms C], dated 19 January 2021 confirming that the children started living with Mr Jayes from 27 December 2021 and that [Child 2] left Mr Jayes’s care on 15 January 2022 following contact from Ms O’Cawley’s family (folios 72/73).

   ·Centrelink notice dated 4 January 2022 indicating that [Child 2] has been paid youth allowance from 24 December 2021 (folio 89).

   [1] Ms O’Cawley clarified that she meant she was not receiving family tax benefit for [Child 1].

Other evidence

1. Confirmation from Centrelink obtained by Child Support indicating [Child 1] had been living independently from 18 April 2021 and [Child 2] had been living independently from 12 November 2021 (folio 224).

Conclusion

1. In this case both parents agree that [Child 1] left Ms O’Cawley’s home on 21 April 2021 and [Child 2] left on 12 November 2021. They also agree that [Child 1] has been in Mr Jayes’s care from 27 December 2021 and that [Child 2] returned to Ms O’Cawley’s care from 15 January 2022.

2. Ms O’Cawley submitted that she continued to have care of [Child 1] until 27 December 2021 even though [Child 1] was not living with her and that there had been no care change for [Child 2] even though [Child 2] had not been living with her for a period of about two months. Mr Jayes disagreed with Ms O’Cawley’s submissions.

3. Ms O’Cawley argued that she continued to support [Child 1] financially, emotionally and medically in the period under review. The evidence before me indicates that Ms O’Cawley may have sent one text message to [Child 1] in about early June 2021 after she had applied for a Restraint Order. The meeting report from 5 July 2021 states that Ms O’Cawley had had no contact with [Child 1] at that time. The NDIS support worker, [Ms B], states that she saw that Ms O’Cawley “was attempting to support [Child 1]” between April and December 2021. It is unclear how [Ms B] would know this as she apparently only commenced working with the family in early September 2021.

4. Mr Jayes said that [Child 1] agreed that he met with Ms O’Cawley in early December 2021 to get the Restraint Order revoked but that Ms O’Cawley did not provide any other assistance to him. Ms O’Cawley argued that [Child 1] is lying.

5. Regarding the care for [Child 2], Ms O’Cawley’s partner ([Mr A]) states that [Child 2] was “coerced to leave” by [Child 1] and Mr Jayes and that the women’s shelter was “fabricating false evidence against Ms O’Cawley”. There is no supporting evidence for this statement.

6. Ms O’Cawley said that she met with [Child 2] and the NDIS support worker about four times between November and December 2021 and that she gave [Child 2] $50 each time. [Ms B] states that Ms O’Cawley made every attempt to get [Child 2] to return home and she supported her “financially, emotionally and medically when she was away from home between 26 November 2021 and 27 December 2021”. I note that [Child 2] left Ms O’Cawley’s home on 12 November 2021 (not 26 November 2021) and there is no supporting evidence on how many times Ms O’Cawley met with [Child 2] or the financial support that she said she provided.

7. Mr Jayes said that he had to purchase clothing and shoes for [Child 2], as she had nothing much with her when he picked her up. Ms O’Cawley denied that [Child 2] had nothing to wear, noting that [Child 2] was wearing very expensive shoes when she left home.

8. In view of the differing evidence before me I have considered government policy in regard of care for older children living away from home, as set out in chapter 2.2.1 of the Child Support Guide. It relevantly states:

Older children living away from home

Generally, older children who live independently and separately from their parents or carers provide for many of their own needs. This may include meeting their own ongoing daily needs (such as meal preparation, transport, socialising, etc.) as well as making their own decisions about their daily activities, schooling and health issues. Therefore, it may be difficult to establish whether a person provides care for an older child who lives separately from that person.

Where a person provides substantial financial support to an older child living away from home, the Registrar will generally consider that financial support as an indicator that the person is continuing to provide care for the child. The support can be in relation to daily costs such as food, accommodation and transport, and/or longer term costs such as school fees, paying for airfares home for holidays, clothing, health and dental care, etc.

While financial support is often a key factor in determining whether a person cares for a child who lives away from home, it will not always be the sole determinant. In cases where the financial support provided is limited, and other factors exist that suggest that the person continues to care for the child, the Registrar will consider whether the person is actively involved in major decisions relating to the child. For example, decisions relating to the child's health, schooling, relationships, career, etc. may be indicators that the person continues to provide care for the child.

1. In relation to [Child 1’s] care, the evidence provided by Ms O’Cawley indicates that she made many efforts to assist [Child 1], but he was resistant to her involvement. It appears that [Child 1] made his own decisions regarding his accommodation, his schooling and his interaction with medical professionals. I acknowledge that Ms O’Cawley signed a treatment consent form and completed a family assessment, but I do not consider this to be indicative of “ongoing care” for [Child 1].

2. I will accept that [Child 1] may have met with Ms O’Cawley a few times in December 2021 to get the restraint order revoked and he may have attended her home on Christmas Day. Ms O’Cawley also stated that she financially supported [Child 1] but there is no supporting evidence in this regard. Overall, I do not consider that a few visits/meetings or even providing [Child 1] with $50 or $100 on a few occasions amounts to “ongoing care”.

3. There is very little evidence regarding Ms O’Cawley’s involvement with [Child 2] before me. It appears that Ms O’Cawley met with [Child 2’s] NDIS worker a few times and [Child 2] may have been present on these occasions. Even if I accept that Ms O’Cawley gave [Child 2] $50 at times or took her shopping (again there is no evidence in relation to this), I am not persuaded that this amounts to ongoing care for [Child 2] after she left home on 12 November 2021.

1. I am of the view that the most persuasive evidence in this case was provided by Centrelink which confirms that [Child 1] was assessed as “living independently” from 21 April 2021 and [Child 2] was assessed as living independently from 12 November 2021. Thus, neither Ms O’Cawley nor Mr Jayes had care of [Child 1] from 21 April 2021 and neither parent had care of [Child 2] from 12 November 2021.

2. This is the same conclusion reached by the objections officer and I will therefore affirm their decision.

DECISION

The decision under review is affirmed.