Rawding and Hamond (Child support)

[2022] AATA 4098

Rawding and Hamond (Child support) [2022] AATA 4098 (27 September 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/AC023726

APPLICANT:  Mr Rawding

OTHER PARTIES:  Child Support Registrar

Ms Hamond

TRIBUNAL:Member J Bakas

DECISION DATE:  27 September 2022

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – departure determination – whether there was a ground for departure – no ground for departure established – 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 Rawding and Ms Hamond are the parents of [Child 1] (born [date] November 2008) and [Child 2] (born [date] January 2011), in respect of whom a child support assessment is in place. The children are in the shared care of their parents. There is another son, [Child 3], who is over 18 years of age and is not part of the child support assessment.

2. Mr Rawding applied for a change of assessment on 22 October 2021 on the basis that he believed the assessment to be unjust and inequitable on account of his and Ms Hamond’s income, property and financial resources (Reason 8A) and that the assessment does not properly reflect Ms Hamond’s earning capacity (Reason 8B).

3. At the time of the application, Mr Rawding was assessed to pay:

   3.1.An annual rate of child support of $14,082 for the period 28 September 2021 to 8 November 2021, based on his adjusted taxable income (ATI) of $154,271 (for the 2020/21 year) and an estimated income of $0 (for the 2020/21 year) for Ms Hamond.

   3.2.An annual rate of child support of $15,610 for the period 9 November 2021 to 30 June 2022, based on his ATI of $154,271 (for the 2020/21 year) and an estimated income of $0 (for the 2020/21 year) for Ms Hamond. The increase is due to [Child 1] turning [age] years of age.

4. Mr Rawding’s application was refused on 24 January 2022 as a ground to depart from the administrative assessment was found not to be established. Mr Rawding objected to this decision, but an objections officer disallowed the objection on 2 April 2022.

5. Mr Rawding applied to the Tribunal for review on 21 April 2022.

6. The parties participated in a telephone directions hearing on 26 July 2022 and have substantially complied with the directions made at that time. At the hearing, which was held on 6 September 2022, Ms Hamond stated that she never received the supplementary papers from the child support agency numbered C180–C249. They were sent to her following the hearing and she was given an opportunity to provide written submissions.

7. Following the hearing, both Mr Rawding and Ms Hamond were given a further two weeks to provide a private child support agreement and an amended tax return respectively.

8. A second hearing was then held on 27 September 2022.

9. All of the additional documentation received by the Tribunal was exchanged between the parties, although it is noted the private child support agreement was not provided.

10. As a consequence, the documentary evidence now before the Tribunal consists of the child support agency documents C1 to C249, Mr Rawding’s documents A1 to A20 and Ms Hamond’s documents B1 to B61.

ISSUES

1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Act) and in the Child Support (Registration and Collection) Act 1988. The rate of child support payable by a liable parent is usually based on an administrative assessment under Part 5 of the Act. This requires the application of a statutory formula which takes into account factors such as the number and age of children, the level of care provided and the income of each parent.

2. Under section 98B of the Act, if special circumstances exist, a liable parent or a carer entitled to child support may apply to the Registrar in writing, requesting a departure from the administrative assessment in relation to a child.

3. Under section 98C of the Act, before making a departure determination on an application made under section 98B of the Act, the Registrar must be satisfied that in the special circumstances of the case, one or more grounds under subsection 117(2) of the Act exist, and that it would be just and equitable and otherwise proper to make a particular determination.

4. The issues for me to determine in this case are therefore:

   ·      Whether one or more of the grounds for departure referred to in subsection 117(2) of the Act exists; and, if so (and only if so),

   ·      Whether it would be just and equitable as regards the child, the liable parent and the carer entitled to child support, and otherwise proper, to make a particular determination to depart from the administrative assessment of child support.

CONSIDERATION

Is there a ground to depart from the administrative assessment of child support?

1. Mr Rawding has raised the ground referred to by the Registrar as ‘Reason 8 – or sometimes Reason 8A (income property and financial resources) and Reason 8B (earning capacity)’. In this regard, subparagraphs 117(2)(c)(ia) and (ib) of the Act provide that, in the special circumstances of the case, a ground for a departure determination may be established if application of the legislative provisions relating to administrative assessment ‘result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent’ due to the income, property and financial resources of either parent, or the earning capacity of either parent, in the special circumstances of the case.

2. Mr Rawding confirmed at the hearing that he no longer wished to press the ground known as Reason 8A relating to his income. Rather he is of the view that Reason 8B should apply in relation to Ms Hamond leaving her job. In particular, he was concerned that government policy regarding vaccination requirements for COVID-19 resulted in the child support payable increasing.

3. In addition, he was of the view that Reason 9 provides another ground to depart from the administrative assessment as he has a duty to maintain [Child 3], even though [Child 3] is an adult. Due to [Child 3]’s circumstances Mr Rawding argues he has a duty to support him which results in additional costs.

Reason 8

Ms Hamond’s financial resources

1. Mr Rawding stated at the hearing that his position is that the child support payable should be calculated based on Ms Hamond’s ATI for the 2020/21 year of about $52,000. He does not think it is fair that government policy regarding vaccination status should result in him paying a higher rate of child support in a situation where Ms Hamond lost her job in the health industry due to her vaccination status.

2. Ms Hamond’s evidence included:

   19.1.She could not continue working in the job she had which was in the health industry as she did not have a COVID-19 vaccination. She ceased working on 21 September 2021.

   19.2.Due to her medical condition, the medication she was taking at the time was too risky for her to receive a COVID-19 vaccination.

   19.3.She does not think her medical condition is anyone’s business.

   19.4.She went onto jobseeker for a short while after a wait period due to her payout from her employer.

   19.5.She commenced casual employment in mid-August 2022. She worked one shift in the first week and three shifts in the second week. In the third week she was rostered on full time.

   19.6.She intends to work full time (between the hours 6:00am to 6:00pm) in the week she does not have care of the children and reduced hours (10:00am to 3:00pm) in the alternate week.

   19.7.She expects on average to earn about $900 per week. She earns about $33.03 per hour.

   19.8.She loved her job and was very passionate about working in [an] area. She won an award from the Regional Services Manager only two months before she left. She was even considering undertaking [studies] to further her career in this area.

3. Even though Mr Rawding initially sought a departure under Reason 8A, he confirmed at the hearing that he was in effect concerned with the effect that Ms Hamond leaving her job had on the child support payable by him. In any event, having considered the evidence regarding Ms Hamond’s income, property and financial resources, the Tribunal finds that there are no special circumstances of the case to depart from the administrative assessment.

4. The Tribunal then considered Reason 8B (the earning capacity ground).

5. Subsection 117(7B) of the Act further regulates the notion of the ‘earning capacity’ of a parent as follows:

   In having regard to the earning capacity of a parent of the child, the court may determine that the parent’s earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied that:

   (a) one or more of the following applies:

   (i) the parent does not work despite ample opportunity to do so;

   (ii) the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full‑time work for the occupation or industry in which the parent is employed or otherwise engaged;

   (iii) the parent has changed his or her occupation, industry or working pattern;

   and

   (b) the parent’s decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:

   (i) the parent’s caring responsibilities; or

   (ii) the parent’s state of health; and

   (c) the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.

6. The Tribunal considers that on Ms Hamond’s own evidence of recent changes to her working life, it is clear that she has made significant changes to her occupation, industry and working pattern. The Tribunal finds that the criteria set out in paragraph 117(7B)(a) of the Act are therefore met.

7. Ms Hamond’s position includes that due to her health, she was not able to have the COVID-19 vaccination which ultimately meant that she could no longer work in the health industry. Her caring responsibilities were not in issue here.

8. In relation to Ms Hamond’s state of health, it was emphasised at the directions hearing that there was no medical evidence in this regard and the Tribunal directed Ms Hamond to obtain medical evidence to support her position that she could not have a vaccination due to her medical condition.

9. The medical evidence Ms Hamond provided consisted of a letter from her general practitioner, Dr [A], dated 10 August 2022, which states Ms Hamond had been asked to provide medical documentation in support of her case and that due to patient confidentiality, Dr [A] is not obliged to give this information unless a subpoena has been authorised.

10. The Tribunal is unwilling to draw inferences from this medical evidence to justify Ms Hamond’s decision to change her occupation and working pattern in 2021 or at any material time and finds that the criteria set out in paragraph 117(7B)(b) is met.

11. It then falls to Ms Hamond to demonstrate that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.

12. This test is a rebuttable presumption. The starting point is that affecting the child support assessment is presumed to be a major purpose of Ms Hamond’s decision about her working arrangements. Ms Hamond needs to demonstrate that it was not a major purpose of the decision to lose her employment by not having a COVID-19 vaccine in order to affect the administrative assessment of child support in relation to the child.

13. The Tribunal notes that the objections officer in their decision dated 2 April 2022, states that it is inherent in the legislation pertaining to a parent’s income and earning capacity, that they must have made a voluntary decision which has resulted in either the loss of their employment, or a change (reduction to their work pattern). Ms Hamond was terminated from her employment and provided an Employment Separation Certificate which states Ms Hamond was made redundant by her employer as from 21 September 2021. As such, the objections officer found that Ms Hamond did not voluntarily relinquish her employment to have a negative impact on the child support assessment which then means that she could not be held to have an unexercised earning capacity.

14. While Ms Hamond had her employment terminated, her evidence at hearing was consistent with the finding that she was aware that by not having a COVID-19 vaccination, she would lose her employment, as her position was in the health industry.

15. She was intending to gain alternative employment, but it was a difficult period to gain employment due to the COVID-19 impact on various industries. She is now working in the [another] industry.

16. The Tribunal has considered Ms Hamond’s explanations and justifications for the changes she made to her occupation.

17. The effect of the loss of her job in September 2021 was that she was to receive an increase of about $3,200pa of child support payable by Mr Rawding. In addition, Ms Hamond went from a salary of about $52,000pa to jobseeker allowance (from 24 November 2021) which is about $18,250 per year, after utilising her gross termination payment of $5,059.63. She is now working again and hopes to earn close to $50,000pa again.

18. On balance, the Tribunal has concluded that Ms Hamond was not substantively motivated by the increase in the child support payable to her.

19. The criterion at paragraph 117(7B)(c) is therefore not established, and the preconditions for having regard to the earning capacity of Ms Hamond as a ground to depart from the administrative assessment is not established.

Reason 9

1. As detailed above, Mr Rawding has raised the issue of his duty to support his eldest adult child, in the context of his application for a departure determination. This relates to a ground for departure set out in subparagraph 117(2)(a)(i) and sub-subparagraph 117(2)(a)(iii)(B) of the Act.

2. These provisions – commonly referred to as ‘Reason 9’ by the child support agency – provide that, in the special circumstances of the case, a ground for departure from the statutory formula may be established if the capacity of either parent to provide financial support for the child is significantly reduced because of the duty of the parent to maintain any other child or another person, or the necessary commitments of the parent to enable the parent to support that child or person.

3. Mr Rawding’s evidence included that [Child 3], who turned 21 [in] August 2021, has been on home detention at Mr Rawding’s house since 24 May 2022. Mr Rawding was asked if he accepted that [Child 3] can be bailed to his address and was informed of all of the relevant requirements that would result. One of these requirements included that [Child 3] would need to attend fortnightly meetings with his bail [officer]. [Child 3] is not eligible for any concession cards. He has had substance abuse and mental health issues since he was about [age] years of age. He has now been sober for about three months and is participating in [a] Program [and] recently commenced some training. He has also suffered some facial trauma and had his teeth knocked out. Due to all of these reasons, [Child 3] has not been able to gain employment as he is not mentally or physically at a point to sustain employment. He has a court date on 15 September 2022 but his sentencing date will be later. By the time of the second hearing, [Child 3] had gained casual employment.

4. Mr Rawding’s evidence refers to costs of about $1,343 per month to maintain [Child 3]. This consists of $360 per month for transport (bus ticket) to attend the [Program] and attend fortnightly check-in with his bail/home detention case manager, $150 per week for food, lawyer’s fees, clothing, entertainment, tobacco/Nicorette, parking, transport of about $250, medical expenses as [Child 3] is no longer eligible for cover under private health and additional dental appointments as part of a dental care plan, which is $133.35 from September 2022 onwards. In addition, Mr Rawding has paid for a [course] at a cost of about $600 which he stated assisted [Child 3] in gaining his casual employment.

5. Ms Hamond’s comment regarding this reason, included that [Child 3] is classed as a dependent not eligible for any income support payments due to Mr Rawding’s income. Mr Rawding did not have to accept that [Child 3] undertake home detention at his house. There was no legal duty to do so. Also, he can get a pass out of home detention to attend a workplace. In addition, she was never informed that [Child 3] was arrested and has not been involved in the management of that process. In addition, she was of the view that some of the costs were excessive (such as food costs) or inappropriate (cigarettes).

6. Although not bound by policy as set out in the ‘Child Support Guide’, the Federal Court has held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. In this case the Tribunal regards the policy as a useful guide to applying the legislation and considers it consistent with the objects of the legislation.

7. The Child Support Guide at 2.6.15 refers to the duty to maintain any other child or another person and notes that a person may have a duty to maintain another person if they are supporting an adult child in accordance with section 66L of the Family Law Act 1975 (FLA). In addition, in the case of Carlson & Acuff & Anor (SSAT Appeal) [2010] FMCAfam 677, the Court found that if the parents have an obligation to support a child under section 66L of the FLA, that duty to maintain should be taken into account under subsection 117(4).

8. The Tribunal considered the evidence before it in relation to this reason and finds that Mr Rawding took it upon himself to allow [Child 3] to be bailed to his property. According to his own evidence, it is not an action that he had to take or accept, although the alternative would be to have [Child 3] held in remand until his court hearing.

9. As a result, the Tribunal does not find a ground of departure from the statutory formula has been established.

10. The application for a change of assessment must therefore be refused.

DECISION

The decision under review is affirmed.