O’Rourke and Forester (Child support)

[2021] AATA 3679

O’Rourke and Forester (Child support) [2021] AATA 3679 (18 August 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC021356

APPLICANT:  Mr O’Rourke

OTHER PARTIES:  Child Support Registrar

Ms Forester

TRIBUNAL:Member J Thomson

DECISION DATE:  18 August 2021

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that there has been no change to the pattern of care for [Child 1], and that the care percentages of 100% to Ms Forester and 0% to Mr O’Rourke remain in place from 28 January 2020.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to pattern of care – no basis to revoke existing care percentage determinations – 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. Mr O’Rourke and Ms Forester are the parents of [Child 1], born 2005.

2. Mr O’Rourke seeks review of an objection decision made by Services Australia (Child Support) (the Agency) on 28 April 2021. This decision allowed Ms Forester’s objection to a decision made by the Agency on 19 February 2021 to accept care percentages for [Child 1] of 50% to Ms Forester and 0% to Mr O’Rourke from 28 January 2020, notified to the Agency by Mr O’Rourke on 19 February 2021.

3. Prior to his notification of a change in care on 19 February 2021, the care percentages being assessed by the Agency were 100% to Ms Forester and 0% to Mr O’Rourke.

4. The Tribunal heard the matter on 27 July 2021. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal also heard affirmed evidence from Ms Forester’s mother, Mrs [Mrs A]. The Tribunal had before it documentation provided by the Agency (Exhibit 1). Both parents had copies of these documents with them at the hearing.

ISSUES

1. The issue which arises in this case is the extent to which the parents were providing care for the child, [Child 1].

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence given by the parents and Mrs [Mrs A] at the hearing, and the documentation contained in Exhibit 1.

2. The law relevant to care percentage determinations is 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 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 until the date of the notification and what was likely to happen thereafter?

3. Mr O’Rourke’s case at the hearing was that since the commencement of the 2020 school year on 28 January 2020 the child, [Child 1], had resided full time with his maternal grandmother, Ms [Mrs A], who is providing all the child’s care and emotional support needs rather than his mother, Ms Forester, to whom Mr O’Rourke was liable to pay child support, being collected by the Agency. He notified the Agency on 19 February 2021 that [Child 1] had been living with [Mrs A] since the commencement of the 2020 school year and sought a new care determination to reflect that care change.  

4. Mr O’Rourke contended that although the Agency was remitting his child support payments to Ms Forester, there was no evidence she is remitting those payments to [Mrs A] for the support for [Child 1]. However, he acknowledged that as he worked remotely, out of town, he has no care of, or direct daily contact with, [Child 1], and no direct knowledge of the child’s day to day care and activities.

5. Ms Forester’s evidence at hearing regarding [Child 1’s] care arrangements was more comprehensive and reliable.

6. She said that her mother, [Mrs A] had assisted her in caring for [Child 1] from the child’s birth. She gave evidence that the child has [specified conditions] and other related learning difficulties. She provided a medical report dated 19 March 2021 from [Child 1’s] treating paediatrician for the past three years, [Doctor A], attesting to these conditions. [Doctor A’s] report describes [Child 1] as a 15 year old boy with autism whose behaviours can be very challenging and who is prone to aggressive outbursts, at times becoming physically violent towards his sister and others when provoked, as a consequence of which, [Doctor A’s] report notes that the child has been residing with his grandmother, [Mrs A], to ensure everyone’s safety. [Doctor A’s] report records that Ms Forester maintains regular contact with the child on a daily basis and is providing financially for the child’s care.

7. Ms Forester also provided a comprehensive undated, but contemporary report from [Ms B], the Deputy Principal of [Child 1’s] [named] school where he is enrolled as a year 10 student. [Ms B’s] report attests to her having worked with [Child 1] and his family for the past three years, and that she is aware that he resides with his grandmother, due to the proximity to the school, and that these living arrangements afford a considerable positive impact on the mental well-being of the child, and that both grandmother and Ms Forester attend meetings at the school, provide transport for [Child 1] to and from school, and otherwise have an active role in caring for the child.

8. Ms Forester gave affirmed evidence of her relationship with [Child 1] since his infancy, and the close support of her mother, [Mrs A]. She gave evidence of her remission of weekly contributions of between $120 and $200 to her mother toward [Child 1’s] food, clothing and other daily living expenses.  She also gave evidence of the extent of her daily involvement in [Child 1’s] care, providing transport to and from school, assistance with his school work, including his completion of school assessments through the use of specialised game-based computerised education technology, the payment of his school fees and other education expenses, and her level of involvement in his social relationships with his school friends, including his personal relationships with his girlfriends. She confirmed her remission to [Mrs A] of child support funds received from the Agency for [Child 1’s] daily maintenance and support.

9. [Mrs A] provided a statutory declaration dated 30 March 2021 attesting to her and her daughter’s contributions financially, emotionally and otherwise to the daily care and support of [Child 1], and gave affirmed evidence at the hearing of her receipt of funds from Ms Forester for the support of the child.

10. Mr O’Rourke acknowledged that he accepted the shared care arrangements between Ms Forester and [Mrs A], and was unable to challenge the evidence of Ms Forester and [Mrs A] as set out above.

11. In the case of Polec & Staker & Anor (SSAT APPEAL) [2011] FMCAfam 959, Hughes FM expressed the view that, in determining whether, and to what extent, a person has care of the child for the purpose of the Act, it is necessary to consider the following:

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

    ·To what extent does the person pay the costs of meeting the child’s needs?

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

12. Applying the above considerations, the Tribunal finds the evidence, on balance, is that, whilst [Mrs A] has provided accommodation, and some assistance to Ms Forester in providing care and support for [Child 1], she has done so in cooperation with, and under the close direction and supervision of Ms Forester. The Tribunal is therefore satisfied Ms Forester has met the criteria set out in Polec’s case sufficient to justify her level of care at 100%.

13. Accordingly, the Tribunal finds there was no change in the level of care Ms Forester was providing for [Child 1] as notified by Mr O’Rourke on 19 February 2021. The decision under review is therefore set aside and the care percentages of 100% to Ms Forester and 0% to Mr O’Rourke from 28 January 2020 remain unchanged.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that there has been no change to the pattern of care for [Child 1], and that the care percentages of 100% to Ms Forester and 0% to Mr O’Rourke remain in place from 28 January 2020.