O’Hagan and Odell (Child support)

[2021] AATA 2737

O’Hagan and Odell (Child support) [2021] AATA 2737 (14 May 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC020848

APPLICANT:  Mrs O’Hagan

OTHER PARTIES:  Child Support Registrar

Mr Odell

TRIBUNAL:Member S Brakespeare

DECISION DATE:  14 May 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – whether a terminating event happened in relation to the payee – none of the parents had at least 35% care – terminating event happened - 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. Mr Odell is the parent liable to pay child support to Mrs O’Hagan in respect of their two children.  This review relates to a decision made about their child [Child 1]. The Child Support Agency records reflected that Mrs O’Hagan had 100% care of [Child 1].

2. On 30 July 2020 Mr Odell advised the Child Support Agency that [Child 1] was not in the care of either parent.

3. On 29 September 2020 an officer of the Child Support Agency found that there was a terminating event in respect of [Child 1] from 20 January 2020 as he was in less than 35% care of either parent (the original decision).

4. Mrs O’Hagan lodged an objection to the original decision. An objections officer disallowed the objection on 17 February 2021. Mrs O’Hagan lodged an application for review of the decision with the tribunal.

5. A hearing was held on 14 May 2021. Mrs O’Hagan and Mr Odell gave evidence on affirmation to the tribunal via conference telephone. The Child Support Agency provided the tribunal and the parties with a bundle of papers relevant to the review (208 pages).

6. Relevant aspects of the evidence and material before the tribunal will be referred to in the tribunal’s consideration of the issues which it has to decide.

ISSUE

1. The statutory provisions relevant to this review are the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the R&C Act).

2. The issue which arises in this case is whether [Child 1] left Mrs O’Hagan’s care.

CONSIDERATION

1. Subsection 12(2AA) of the Act provides that a ‘terminating event’ happens if neither parent is an eligible carer and there are no alternative non-parent carers entitled to be paid child support in relation to the child. Sections 5 and 7B of the Act provide that an eligible carer must have at least 35% of the child’s care. A terminating event means that the child support case in respect of the child is ended.

2. Section 74 of the Act provides that the Child Support Agency, upon being notified of or becoming aware of a terminating event, must immediately take action to give effect to the terminating event. If the Child Support Agency is required to end an assessment, the assessment will end from the date of the terminating event, regardless of the date that the Child Support Agency was notified of the terminating event (section 74 of the Act).

3. The term ‘care’ is not defined in the legislation.  The tribunal had regard to the Federal Magistrates Court case of Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959] which discusses the meaning of ‘care’ in detail including the factors that should be taken into account when deciding if a person is providing care for a child.  The court stated that in determining whether and to what extent a person has care of a child for the purpose of the Act and the R&C Act 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?

4. Information provided by the Department of Youth Justice confirms that [Child 1] was admitted to the [a] Detention Centre for the following periods:

   ·     [date] January 2020 to [date] January 2020;

   ·     [date] April 2020 to [date] May 2020;

   ·     [date] May 2020 to [date] May 2020;

   ·     [date] June 2020 to [date] July 2020.

5. The Child Support Agency confirmed with Centrelink that [Child 1] had been in receipt of youth allowance for the period 6 April 2020 to 5 June 2020 and again from 3 August 2020.

6. On 29 July 2020 [Child 1] was placed in Supervised Community Accommodation. His caseworker wrote at the time that the objective of the placement was to support [Child 1] in achieving stability with education and other identified supports prior to him transitioning into long-term supported independent living.  Mrs O’Hagan advised the Child Support Agency that [Child 1]’s living expenses were generally met by the government from that time going forward.

7. Mrs O’Hagan told the tribunal that although [Child 1] has not lived with her since January 2020 she has continued to support him financially and emotionally. She said that she arranged his bail on a number of occasions on the basis that he would be residing with her. However once released from detention [Child 1] would refuse to stay with her and would return to the streets and offend again. Despite this, she remained [Child 1]’s primary contact in respect of his legal proceedings and with the case workers involved in rehabilitation efforts. Eventually she refused to arrange bail for him hoping that an extended period of detention would see improvement his behaviour. However, she continued to support him with money for rent,  food and transport.  She acknowledged that [Child 1] was in receipt of Centrelink payments; however she said he has a significant issue with drugs and that is where the money goes. She pays his rent so he won’t end up on the streets.

8. Mrs O’Hagan provided a number of receipts to the Child Support Agency for purchases made in respect of [Child 1]. She also provided evidence of transfers of money made to [Child 1]’s bank account or to third parties in respect of [Child 1]’s car costs.

9. Mr Odell said that [Child 1] has not resided with Mrs O’Hagan at any time since 3 January 2020 when he first went into detention. He disagreed with Mrs O’Hagan’s claim about monies she said that she paid to [Child 1] or to third parties for his support. Mr Odell said that he should not have to pay child support to Mrs O’Hagan for a child that is no longer residing with her.

10. The tribunal accepts that Mrs O’Hagan has made a number of ad hoc payments, either  directly to [Child 1], or to third parties for some of [Child 1]’s needs, since January 2020 However, the tribunal is not satisfied that the level of financial support provided by Mrs O’Hagan was either regular enough or of a sufficient quantum to provide for [Child 1]’s daily needs.  It appears that [Child 1] has been supported by friends or relied upon his own resources in the periods he was not in detention.  [Child 1] was also making his own decisions about where he was residing when not in detention.

11. Since 6 April 2020 [Child 1] has been in receipt of Centrelink payments, except for the periods he was in detention. Whilst in detention his needs were met to a large extent by the state. When he moved to Supervised Community Accommodation he had the support of the state and was also in receipt of Centrelink payments. Whilst Mrs O’Hagan has provided receipts indicating that she has made ad hoc payments for items such as food, transport, dental appointments etc. for [Child 1] the tribunal finds this financial support was neither regular enough nor of sufficient quantum to find that she is providing care for [Child 1] once he ceased residing with her.  Whilst Mrs O’Hagan continues to provide emotional support and some financial support for [Child 1], these factors alone are not sufficient to find that he remains in her care for the purposes of child support.

12. The tribunal therefore finds that as of 3 January 2020 [Child 1] was not in the care of either parent giving rise to a terminating event. This means that the child support case in respect of [Child 1] ends from that date.

DECISION

The decision under review is affirmed.