Paget and Cabrera (Child support)

[2022] AATA 415

Paget and Cabrera (Child support) [2022] AATA 415 (3 February 2022)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2021/BC022322

APPLICANT:  Mr Paget

OTHER PARTIES:  Child Support Registrar

Ms Cabrera

TRIBUNAL:  Member R King

DECISION DATE:  03 February 2022

DIRECTION TO ALTER DECISION OR REASONS FOR DECISION:

Pursuant to section 43AA of the Administrative Appeals Tribunal Act 1975, the following alteration is made to the decision:

The decision is altered to read: REVIEW NUMBER: 2021/BC022322

Member R King

11 March 2022

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC022322

APPLICANT:  Mr Paget

OTHER PARTIES:  Child Support Registrar

Ms Cabrera

TRIBUNAL:Member R King

DECISION DATE:  3 February 2022

DECISION:

The tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – departure determination – special needs of the child established – not just and equitable to change the assessment – decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed 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. This review is about whether or not there should be a departure from the administrative assessment of child support.

2. Mr Paget and Ms Cabrera are the parents of [Child 1], born October 2011.  Mr Paget and Ms Cabrera share [Child 1]’s care, with the care percentages recorded as 39% with Mr Paget and 61% with Ms Cabrera.

3. There has been a child support assessment in place, with initial registration by the Child Support Agency (CSA) on 25 September 2013.  Under the pre-existing assessment, Mr Paget is the parent liable to pay child support.

4. For the period from 15 December 2020 to 30 June 2021 Mr Paget was assessed to pay an annual rate of $6,900 based on 2020-21 adjusted taxable income estimates of $104,859 for Mr Paget and $47,446 for Ms Cabrera. For the period from 1 August 2021 to 31 October 2022 Mr Paget is assessed to pay an annual rate of $10,501 based on 2019-20 indexed default income of of $148,985 for Mr Paget and a 2020-21 adjusted taxable income of  $46,108 for Ms Cabrera.  The income assessments are not the primary subject of this review.

5. On 24 February 2021 Mr Paget applied to the CSA for a change to the assessment on the basis that [Child 1] has special needs that significantly affected the costs of his maintenance (the grounds commonly referred to as Reason 2).

6. On 1 June 2021 the CSA made the decision not to change the assessment (the original decision).  This decision was based on a finding that Reason 2 had not been established.

7. On 6 July 2021 Mr Paget objected to this decision and on 30 August 2021 an objections officer disallowed the objection.  The objections officer found that Reason 2 was established but that it would not be just and equitable to change the assessment. This was because most of the costs associated with [Child 1]’s special needs pre-dated the request for a change of assessment and Ms Cabrera could have and should have sought a change of assessment at the time that the costs were being incurred.

8. On 15 September 2021 Mr Paget applied for a review of the objection decision by the Administrative Appeals Tribunal (the tribunal).

9. The tribunal convened a pre-hearing conference under section 103 of the Child Support (Registration and Collection) Act 1988. The conference took place on 8 December 2021. Both Mr Paget and Ms Cabrera attended by conference telephone. Prior to the telephone conference the CSA provided the tribunal and the parties with a bundle of documents in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 .

10. Both Mr Paget and Ms Cabrera were directed to provide further information to the tribunal.  Both parties complied and the documents were exchanged between the parties.

11. A hearing was held on 31 January 2020.  Both Mr Paget  and Ms Cabrera gave evidence on affirmation by conference telephone.

12. At the conference and at the commencement of the hearing the tribunal clarified with Mr Paget and Ms Cabrera the reasons for the application.  Both parties confirmed that the only matter in dispute was whether a change of assessment was warranted because of [Child 1]’s special needs.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. The rate of child support payable by the liable parent is usually based on an administrative assessment under Part 5 of the Act.

3. Under Part 6A of the Act, the liable parent or the carer of the child or children may apply to the Child Support Registrar for a determination to depart from the administrative assessment (section 98B).

4. Section 98C provides that the Registrar may make a determination to depart from the administrative assessment and establishes a three-step process such that the issues for determination by this tribunal are:

   ·      whether a ground is established to depart from the administrative assessment of child support; and if so,

   ·      whether it is just and equitable to make a particular departure determination; and if so,

   ·      whether it is otherwise proper to make a particular departure determination.

5. Section 98S allows for a change of assessment to be prospective and/or to cover a period of up to 18 months prior to the request for a change of assessment

6. The grounds for departure from an administrative assessment of child support are set out in subsection 117(2) of the Act.  Section 117 designates 10 grounds for departure.  A departure may be based on one or more of these designated grounds.

7. Each ground is prefaced by the words “in the special circumstances of the case”.  The meaning of this expression is not defined in the Act, but the Family Court in Gyselman and Gyselman [1991] FamCA 93 has held that:

   as a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the Legislature is that the court will not interfere with the formula in the ordinary run of cases.

8. In Philippe and Philippe (1978) FLC 90-433 the Court held that “special circumstances” are “facts peculiar to the particular case which set it apart from other cases”.

9. If the tribunal is satisfied that one or more grounds exist and that it would be just and equitable and otherwise proper to make a particular determination, the tribunal may make one of the determinations prescribed in section 98S of the Act.

10. The range of determinations which can be made includes variations to the annual rate of child support payable; or to the adjusted taxable incomes of the parents and/or carer; or to other components of the statutory formula used to calculate child support.

CONSIDERATION

Issue 1 – Is there a ground for departure?

1. A ground for departure exists where, in the special circumstances of the case, application of the administrative assessment of child support would result in an unjust and inequitable determination of child support to be provided by the liable parent in respect of the child because of the special needs of the child (subparagraph 117(2)(b)(ia) of the Act).

2. Mr Paget told the tribunal that he arranged for [Child 1] to attend a child psychiatrist (Dr [A]) and a clinical psychologist (Mrs [B]) for assessment and treatment because [Child 1] was reporting difficulties at school and was struggling with his homework.  Mr Paget said that, during the course of these consultations, a diagnosis of attention deficit hyperactivity disorder (ADHD) was made, and treatment prescribed.  Mr Paget said that Ms Cabrera did not accept the diagnosis or the need for treatment.  Mr Paget said that Ms Cabrera was uncooperative when Dr [B] arranged for [Child 1] to undergo cognitive testing at a [clinic].

3. The tribunal notes that the hearing papers contain a record of payments made to [Dr A], commencing on 6 March 2019.  These records indicate eight consultations up to and including 18 November 2020 and one further consultation in 2021. The tribunal further notes that the hearing papers contain a record of payments made to Mrs [B], commencing on 30 August 2019.  These records indicate 12 consultations up to and including 14 December 2020 and a further four consultations during 2021.

4. The tribunal notes that the hearing papers contain a note from [Dr A], dated 24 February 2021, stating that a diagnosis of ADHD was confirmed on 28 February 2020.  A letter from [Dr A], dated 5 June 2020 provides a detailed explanation as to how she reached the diagnostic formulation.

5. The tribunal notes that the hearing papers contain a diary kept by [Child 1]’s teacher (Ms [C]) documenting [Child 1]’s behaviour over a four-week period during July/August 2020.  Ms [C] advised that the diary was kept at the request of Mr Paget.  The records indicate highly variable behaviour with some days characterised by disruptive behaviour and inattention and other characterised by quiet diligent work.

6. Ms Cabrera told the tribunal that she has never accepted that [Child 1] has special needs.  She said that she has not seen evidence of attentional difficulties when [Child 1] is with her and he manages his homework without difficulty.  Ms Cabrera told the tribunal that she accepts that a diagnosis of ADHD has been made by properly qualified professionals but that she has been advised by [Dr A] that [Child 1]’s ADHD is mild and not such as to result in special needs necessitating greater than average medical expenses.  Me Cabrera told the tribunal that [Child 1] is on a low dose of medication and is only required to take the medication on days when he is attending school.  Ms Cabrera said that Mr Paget took it upon himself to arrange consultations with medical specialists and made no reasonable attempt to engage with her in the process until required to do so by a court order in December 2020.  Mr Cabrera said that her own treating clinical psychologist (Dr [D]) advised against releasing all of her ([Dr D]’s) records of engagement with Ms Cabrera and [Child 1] to the [clinic].  Ms Cabrera told the tribunal that, since the court order, she has been attending all of [Child 1]’s consultations and paying for those consultations that she arranges.

7. The tribunal notes that the hearing papers contain a copy of an email communication from [Dr A] to Ms Cabrera.  In this communication, [Dr A] states

   I can’t speak to what Department of Human Services believe constitutes “special needs” necessitating greater than average medical expenses, but I don’t think that a fairly non-severe inattentive ADHD and possible reading disorder would fit this criteria.

8. The tribunal notes that Ms Cabrera provided the tribunal with copies of letters from Dr [D], a clinical psychologist who she engaged to treat [Child 1] for problems with anger and anxiety in 2016 and in 2018.  [Dr D] noted that [Child 1] presented as hyperactive and easily distracted but was able to settle and engage effectively with his psychological treatment.  [Dr D] noted tensions between Ms Cabrera and Mr Paget as possible contributors to [Child 1]’s mental health difficulties.

9. The tribunal is of the view that both the documents and submissions before it, establish that [Child 1] had sufficient behavioural and attentional difficulties to warrant specialist assessment.  The findings of the specialist assessment and, especially the findings of [Dr A] established a diagnosis of ADHD and the prescription of medication for treatment of this condition.  [Dr A] noted that [Child 1]’s ADHD was “fairly non-severe” and it would appear that [Dr D] was of the opinion that the family dynamics were at least partly responsible.  The teacher diary indicated marked variability with respect to the presence and severity of symptoms.

10. The tribunal is satisfied that the diagnosis of ADHD and the need for ongoing treatment is sufficient to establish that [Child 1] has special needs.  While ADHD is not a rare condition, it affects a minority of children, with prevalence in Australia estimated to be in the range of 5% to 10% of school age children.  This means that such a diagnosis meets the requirement of being “special or out of the ordinary”.

11. However, a finding that [Child 1] has special needs does not in itself establish Reason 2.  Reason 2 requires that the special needs are such as to significantly affect the cost of [Child 1]’s maintenance.  Neither the legislation nor the Family Support Guide (a document used by the CSA to assist in application of the legislation) defines what constitutes a significant effect on the cost of maintenance.  The Guide suggests that the decision maker may take into account the capacity of the parents to meet the costs and that they must be non-trivial when considered in relation to the capacity of a parent to pay.

12. The objections officer found that Mr Paget incurred out-of-pocket medical expenses in the sum of $2,021.30 over a two-year period between 16 March 2019 and 16 March 2021.  The objections officer found that this sum amounted to a non-trivial component of the cost of maintaining [Child 1]. 

13. Neither party disputed these costs during either the conference or the hearing.  The tribunal agrees with the objections officer that the medical expenses incurred by Mr Paget should be regarded as having a significant effect on the cost of maintaining [Child 1].

14. It follows that the objections officer therefore properly found that Reason 2 was established.  On this basis the tribunal finds there is a ground for departure from the administrative assessment.

Issue 2 – Is it just or equitable to make a particular determination?

1. As the tribunal finds there is a ground to depart from the administrative assessment of child support, the next step is to consider whether it is just and equitable as regards [Child 1], Mr Paget (the liable parent), and Ms Cabrera (the parent entitled to child support) to make a particular determination in accordance with sub-subparagraph 98C(1)(b)(ii)(A) of the Act. This in turn requires the tribunal to consider the matters discussed below,[1] which are as set out in subsection 117(4) of the Act:

   [1] The tribunal is required to give “overt consideration” to relevant factors listed in subsection 117(4) of the Act: Tyagi & Meares (SSAT Appeal) [2008] FMCAfam 886.

   (4)In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to:

   (a)    the nature of the duty of a parent to maintain a child (as stated in section 3); and

   (b)    the proper needs of the child; and

   (c)    the income, earning capacity, property and financial resources of the child; and

   (d)    the income, property and financial resources of each parent who is a party to the proceeding; and

   (da)  the earning capacity of each parent who is a party to the proceeding; and

   (e)    the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:

   (i)   himself or herself; or

   (ii)  any other child or another person that the person has a duty to maintain; and

   (f)     the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and

   (g)    any hardship that would be caused:

   (i)to:

   (A)the child; or

   (B)the carer entitled to child support;

   by the making of, or the refusal to make, the order; and

   (ii)to:

   (A)the liable parent; or

   (B)any other child or another person that the liable parent has a duty to support;

   by the making of, or the refusal to make, the order; and

   (iii)to any resident child of the parent (see subsection (10)) by the making of, or the refusal to make, the order.

The nature of the duty of a parent to maintain a child (as stated in section 3 of the Act)

1. Section 3 of the Act states that it is the primary duty of a parent to maintain the child and this has priority over nearly all other commitments.

2. In this case the tribunal accepts that both parents accept this principle but have somewhat different views about this entails.

The proper needs of the child

1. In relation to the proper needs of the child, regard must be had to the manner in which the child is being, and in which the parents expected the child to be, cared for, educated or trained, and any special needs of the child (subsection 117(6) of the Act).

2. The tribunal was not made aware that the parents expected [Child 1] to be cared for, educated or trained in a particular way.  However, central to the assessment in this matter is the nature and extent of [Child 1]’s special needs.

3. The objections officer accepted that [Child 1]’s ADHD was sufficient to establish Reason 2 but found that it would not be just and equitable to require Ms Cabrera to contribute to the costs incurred by Mr Paget in establishing the diagnosis and instigating treatment because most of the costs predated his request for a change of assessment and he did not adequately consult with Ms Cabrera.

4. The evidence before the tribunal suggests that Mr Paget made a unilateral decision to arrange for psychiatric and psychological assessments treatment for [Child 1].  Likewise, Ms Cabrera made unilateral arrangements to engage a clinical psychologist.    Mr Paget has submitted that Ms Cabrera’s attitude and conduct was such as to make collaborative decision-making impossible.  Ms Cabrera lays the responsibility for the communication difficulties with Mr Paget.  During the hearing, Mr Paget submitted that he asked Ms Cabrera to contribute to the costs of the assessment and treatment he had arranged.  Ms Cabrera said that she does not recollect any such request prior to 2021 and that, had he made such a request informally, she would have asked him to put it in writing because their verbal communications were unpleasant, uncivil and difficult.

5. The evidence before the tribunal, including the medical evidence, indicates that, prior to 2021, Mr Paget and Ms Cabrera have been unable to communicate effectively about [Child 1]’s needs.  This appears to be in part because they saw his needs differently (and had received somewhat different advice from health professionals regarding his needs) but also because there is a deficit of trust in and respect for the other parent.

6. The difficulties in communication were such as to ultimately require resolution by an order of the Federal Circuit Court, dated 15 December 2020, which, among other things, set out the procedures by which [Child 1]’s special needs were to be addressed and required both parents to engage in a period of personal counselling to assist with their problems with affect regulation and/or anger management. 

7. The evidence before the tribunal indicates that both parents have been complying with these orders.  The evidence before the tribunal indicates that, from the time of the court orders, both parents have been contributing to the costs of [Child 1]’s medication and have been provided with an opportunity to participate in any medical consultation arranged for [Child 1].  The evidence indicates that, during 2021 four consultations were arranged with Ms [B] and one was arranged with [Dr A].  Appointments were arranged on an ad hoc basis when one or other parent (usually Mr Paget) had concerns about [Child 1].  The parent who arranged the consultation paid for the consultation.  There is no evidence that either [Dr A] or Ms [B] were of the opinion that [Child 1] should attend regular appointments. 

8. Mr Paget submitted during the hearing and in his application for a change of assessment, that Ms Cabrera should share the costs of [Child 1]’s treatment.  Ms Cabrera’s position is that she is agreeable to sharing costs of necessary treatment (medication) but not discretionary treatment that Mr Paget deems necessary.

1. Overall, the tribunal is of the view that the evidence allows a finding that the assessment and treatment arranged by Mr Paget, prior to the court order of 15 December 2020, was reasonable and appropriate.  However, the tribunal does not accept that it is just and equitable for Ms Cabrera to be retrospectively required to contribute to costs that were incurred without her agreement and in the absence of an adequate attempt to obtain her agreement.  The tribunal notes that, while Mr Paget is seeking a retrospective contribution, at the time of his application for a change of assessment, he referred to having carried the costs of [Child 1]’s medical care for the last several years and stated that: “I now feel that Ms Cabrera should take responsibility for her part …”

2. The evidence before the tribunal indicates that Ms Cabrera has, since the court order, shared in the costs of [Child 1]’s medication.  The tribunal accepts that Mr Paget has disproportionately paid for psychiatric and psychological consultations subsequent to the court order.  However, the tribunal is unable to be satisfied that these consultations were part of [Child 1]’s necessary treatment.  The medical evidence does not support such a finding and the tribunal is of the view that Ms Cabrera’s position, that they were more to allay Mr Paget’s concerns than to meet [Child 1]’s special needs, is not unreasonable given the absence of evidence that either [Dr A] or Mrs [B] regarded ongoing consultations as necessary.

3. The tribunal therefore agrees with the objections officer that, notwithstanding [Child 1]’s special needs, these needs alone do not make it just and equitable to change the assessment.

The income, earning capacity, property and financial resources of the child

1. The tribunal is satisfied that [Child 1] has no income, earning capacity, property and financial resources which are to be taken into account for the purpose of child support.

The income, property, financial resources and earning capacity of each parent

1. The evidence before the tribunal indicates that Mr Paget had an adjusted taxable income of $173,900 for the 2020-21 tax year and Ms Cabrera had an adjusted taxable income of $44,177 for the 2020-21 tax year. 

2. The tribunal has not undertaken a detailed investigation of the finances of both parties but there is no evidence before the tribunal to suggest that Mr Paget is unable to manage the costs of specialist consultations that he arranges for [Child 1]. 

The necessary commitments of self-support or to support any other child or person

1. The tribunal is satisfied that Mr Paget has the means to meet his support obligations.

Any hardship that would be caused

1. The tribunal is satisfied its proposed determination will not cause hardship to Mr Paget, Ms Cabrera or [Child 1].  However, were the tribunal to change the assessment, as requested by Mr Paget, it is likely that Ms Cabrera would incur a child support debt which, given her modest income, could cause her financial hardship.  The tribunal has already explained why it does not think that it would be just or equitable to retrospectively impose a financial burden on Ms Cabrera.

Overall

1. Having regard to the six considerations specified above, the tribunal is satisfied, for the reasons outlined, especially in respect of the proper needs of the child and the retrospective impact of a change of assessment on Ms Cabrera, that a change of assessment would not be just and equitable in the circumstances.

Issue 3 – Is it otherwise proper to make a particular determination?

1. The third step is to consider whether it would be otherwise proper to make a particular departure determination in accordance with sub-subparagraph 98C(1)(b)(ii)(B) of the Act. Subsection 117(5) sets out the matters that must be considered when deciding whether it would be “otherwise proper” to make a departure determination.  It focuses on the balance of support carried between the parents on one hand and the taxpayer on the other.  It is appropriate for children to be primarily supported by their parents rather than by government assistance.  The tribunal must consider whether the level of a benefit, in particular family tax benefit, received by the party caring for the children may be affected by the level of child support.

2. As the tribunal has decided not to change the assessment, the effect of the tribunal’s decision is unlikely to have any bearing on the balance of support carried by the parents and the taxpayer.  The tribunal is therefore satisfied that the decision to not change the assessment is otherwise proper in the terms of the Act.

DECISION

The tribunal affirms the decision under review.