Swanston and Nasser (Child support)

[2020] AATA 5111

Swanston and Nasser (Child support) [2020] AATA 5111 (16 October 2020)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2020/MC019266

APPLICANT:  Ms Swanston

OTHER PARTIES:  Child Support Registrar

Mr Nasser

TRIBUNAL:  Member A Ducrou

DECISION DATE:  16 October 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – application for administrative assessment – whether the application from a non-parent carer was correctly accepted – there was no serious risk posed – non-parent does not meet the criteria for an eligible carer – the application should be refused – 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. Mr Nasser is the father of a daughter now aged 18 (the child). The child’s mother is deceased. This review is about whether an application made by Ms Swanston (who is the child’s maternal aunt) for the administrative assessment of child support for the child should be accepted.

2. Records maintained by the Department of Human Services – Child Support, now Services Australia (the Agency) show that Ms Swanston lodged an application with the Agency on 31 December 2019 as a non-parent carer for administrative assessment of child support for the child. On 14 January 2020 a delegate of the Child Support Registrar (the Registrar) made a decision to accept Ms Swanston’s application.

3. The Agency’s records show that a child support case for the child was registered from 31 December 2019. Mr Nasser was the person liable to pay child support for the child under the administrative assessment for child support and Ms Swanston was the person who was entitled to receive child support for the child. Percentages of care of 100% for Ms Swanston and 0% for Mr Nasser were recorded as particulars of the administrative assessment and were applied in the administrative assessment from 31 December 2019.

4. On 17 February 2020 Mr Nasser lodged an objection to the decision made on 14 January 2020. On 25 May 2020 an objections officer of the Agency decided to allow the objection. The objections officer decided to refuse the application that Ms Swanston made as a non-parent carer for administrative assessment of child support for the child. On 16 June 2020 Ms Swanston applied electronically to the Social Services and Child Support Division of the Administrative Appeals Tribunal for independent review of the objections officer’s decision.

5. The tribunal conducted a hearing on 18 September 2020. Ms Swanston participated at the hearing by telephone via Microsoft Teams audio. Ms Swanston gave oral evidence at the hearing on affirmation and made oral submissions. Mr Nasser did not participate at the hearing. He was represented at the hearing by [Ms A] of [Law Firm 1] who participated at the hearing by telephone via Microsoft Teams audio. [Ms A] made oral submissions at the hearing. The Registrar did not participate at the hearing. The tribunal had before it documents from the Registrar (numbered 1 to 214). The tribunal received documents from Ms Swanston prior to the hearing (numbered A1 and A2) copies of which were provided to Mr Nasser. The tribunal deferred the review to allow time for Ms Swanston and Mr Nasser to provide information to the tribunal.

6. After the hearing the tribunal received additional documents from Ms Swanston and documents from [Ms A] as Mr Nasser’s representative. Copies of the documents from Ms Swanston numbered (A3 to A73) were provided to Mr Nasser. Copies of relevant documents received from [Ms A] as Mr Nasser’s representative (numbered B1 to B146) which included written submissions from [Ms A] dated 2 October 2020 were provided to Ms Swanston. Copies of documents numbered A1 to A73 and B1 to B146 were provided to the Registrar. The tribunal made its decision on 16 October 2020.

ISSUES

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

2. The issue which arises in this case is:

   ·      Should the application that Ms Swanston made for administrative assessment of child support for the child be accepted?

CONSIDERATION

Issue – Should the application Ms Swanston made for an administrative assessment of child support for the child be accepted?

1. Section 25A of the Assessment Act permits a person who is not a parent of a child to apply to the Registrar for administrative assessment of child support for the child, provided that specified requirements are met. The first requirement is set out in paragraph 25A(a) of the Assessment Act which requires the applicant to be an eligible carer of the child.

2. The meaning of “eligible carer” is set out in section 7B of the Assessment Act. Under subsection 7B(1) a person is required to have at least shared care of the child in order to be an eligible carer in relation to the child. A person has shared care of a child if the person’s percentage of care for the child during a care period is at least 35% but not more than 65% (subsections 5(1) and (3) of the Assessment Act).

3. Subsection 7B(2) of the Assessment Act limits the application of subsection 7B(1) where a person who is neither a parent nor a legal guardian of the child cares for a child. Under subsection 7B(1) if a parent or legal guardian of the child has indicated that they do not consent to a person who is neither a parent or a legal guardian of a child caring for the child then the person who is not the child’s parent or legal guardian is not an eligible carer in relation to the child unless it would be unreasonable in the circumstances for a parent or legal guardian of the child to care for the child. Subsection 7B(3) provides that for the purposes of subsection 7B(2) of the Assessment Act it is unreasonable for a parent or legal guardian to care for a child if the Registrar is satisfied that there has been extreme family breakdown or that there is a serious risk to the child’s physical or mental wellbeing from violence or sexual abuse in the home of the parent or legal guardian concerned.

4. The legislation does not specify what constitutes extreme family breakdown for the purposes of subsection 7(2) of the Assessment Act. This is discussed at section 2.1.1 of the government’s online policy: the Child Support Guide (the Guide). The tribunal is not bound by policy. However, in Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 the Full Court of the Federal Court held that tribunal decision-making could be informed by government policy which is not inconsistent with the provisions or objects of the legislation. In this case the tribunal accepted that the policy is consistent with the objects of the Assessment Act and that there is no inconsistency between the legislative provisions and the policy for determining whether it would be unreasonable for a parent or legal guardian to care for a child.

5. Ms Swanston applied to the tribunal for review on the basis that it is unfair for her not to receive child support from Mr Nasser for the child when the child has been living with her since 16 September 2019 and that she and not Mr Nasser has provided all care for the child since then. Ms Swanston told the tribunal that she provides for the child financially in terms of providing the child with accommodation and paying for the utilities and food for the child as well as for the child’s share of other household expenses. Ms Swanston noted that she has also paid medical and pharmaceutical expenses for the child, for the child’s grooming, personal care expenses, clothes and the costs of taking the child to school and picking her up from school as well as for the costs incurred by the child gaining the required hours of driving experience for her driver’s licence. Ms Swanston maintained that she, not Mr Nasser had provided care for the child in all other respects, including supporting the child in making decisions about her career and education and providing the child with social and emotional support.

6. Ms Swanston acknowledged that Mr Nasser did pay for some of the child’s expenses. However, she maintained that he did not pay for the expenses for the child that he claims to have paid. In particular, Ms Swanston pointed out that Mr Nasser had not paid for the child’s private school fees as he claimed. She told the tribunal that the private school fees were paid from funds held for the child’s benefit in the Supreme Court of Victoria Common Fund, being funds sourced from the child’s late mother’s estate (documents Ms Swanston provided confirmed this). Ms Swanston noted that she had not asked the child to live with her. The child came to live with her because the relationship between the child and Mr Nasser had broken down.

7. [Ms A] submitted (in summary) that Mr Nasser did not consent to Ms Swanston caring for the child. At all relevant times Mr Nasser had a loving relationship with the child and their relationship had not broken down. Mr Nasser provided substantial and sustained financial support for the child since the child has lived with Ms Swanston. At the child’s request Mr Nasser transfers money from his bank account to the child’s bank account for the child’s use. Mr Nasser contributes to the costs of the child’s food and clothing and pays for her dental treatment, private health insurance, textbooks, mobile telephone plan and tutoring fees. Mr Nasser had frequent contact with the child at all relevant times as demonstrated by the copies of the SMS communications that Mr Nasser provided. [Ms A] submitted that the child has the capacity to support herself financially as the child receives youth allowance and since turning 18 years of age, the child has had access to funds from her inheritance.

8. It is not at issue that Ms Swanston lodged an application with the Agency on 31 December 2019 for administrative assessment of child support for the child. Her application was made on the basis that she is the child’s maternal aunt and that the child had lived with her from 16 September 2019 with the child being in her care for 100% of the time since then.

9. It is common ground that Mr Nasser is the parent of the child and that Ms Swanston is not a legal guardian of the child. It is also common ground that the child has been living with Ms Swanston from 16 September 2019 and that prior to then the child lived with Mr Nasser. No court orders are in place for the child’s care.

10. The tribunal received extensive documentation from Ms Swanston and Mr Nasser in support of the care they claim to have provided for the child. The contentions they advanced regarding their claims are inconsistent and cannot be reconciled. Consistently with the oral and documentary evidence before it the tribunal finds that in this case the appropriate care period is the 12-month period that commenced on 16 September 2019, being the date from which the child has lived with Ms Swanston and that during that care period Ms Swanston has provided care for the child with her percentage of care for the child being at least 35% to 65%. Therefore, the tribunal is satisfied that when Ms Swanston lodged the claim for an administrative assessment of child support for the child on 31 December 2019 Ms Swanston had at least shared care of the child. Based on the oral and documentary evidence the tribunal accepted that Mr Nasser also provided care for the child during the care period that commenced on 16 September 2019.

11. The information that Mr Nasser provided to the Agency and to the tribunal confirmed that he does not consent to Ms Swanston caring for the child. It follows that Ms Swanston does not meet the requirements for being an eligible carer in relation to the child unless it would be unreasonable in the circumstances for Mr Nasser to care for the child.

12. In an affidavit that Ms Swanston provided during Federal Circuit Court of Australia proceedings, Ms Swanston described the deterioration of the child’s relationship with Mr Nasser following the death of the child’s mother which culminated in the child coming to live with Ms Swanston because she feared physical harm from Mr Nasser. At the hearing Ms Swanston told the tribunal that the child is petrified of Mr Nasser. Ms Swanston acknowledged that the child had some contact with Mr Nasser since coming to live with her. However, the contact was limited and comprised of SMS communications between the child and Mr Nasser and to the child meeting Mr Nasser a few times for lunch or dinner. Ms Swanston told the tribunal that the child refuses to spend any time with Mr Nasser. Ms Swanston maintained that the relationship between the child and Mr Nasser had broken down irretrievably.

13. The information received from Mr Nasser indicates that he disputed strenuously Ms Swanston’s claims concerning the breakdown of his relationship with the child. He maintained that although the relationship had deteriorated it remained a loving relationship. In her written submissions [Ms A] stated that it is Mr Nasser’s wish for the child to return and live with him at his home. [Ms A] submitted further that the child, who is a teenager, is simply electing to live with Ms Swanston because Ms Swanston allows her a greater level of freedom to do as she pleases that Mr Nasser would if the child were living with him.

14. The tribunal had regard to the policy set out at section 2.1.1 of the Guide for guidance as to whether it was unreasonable in the circumstances for Mr Nasser to care for the child due to extreme family breakdown or a serious risk to the child’s physical or mental wellbeing from violence or sexual abuse in the home of Mr Nasser. Relevantly, the policy provides that:

    The Registrar will be satisfied that there has been an extreme family breakdown if:

    ·the child has never lived with the parent, or

    ·there has been a substantial period since the parent has provided care for the child, or

    ·other circumstances indicate extreme family breakdown.

    However, the Registrar is unlikely to be satisfied that there has been an extreme family breakdown if the parent has had frequent and regular contact with the child over a substantial part of the period when another person provided care for the child.

    The Registrar may seek evidence of extreme family breakdown.

15. The policy goes on to state:

    When determining whether there is a serious risk to the child's mental or physical wellbeing as a result of violence or sexual abuse in the home of the parent or legal guardian, the individual circumstances of each case, including any evidence provided, will be considered. Examples of evidence that may assist to substantiate a claim of serious risk of violence/abuse to the child include, but is not limited to, police reports/statements; apprehended violence orders; domestic violence orders; medical reports; or applications for a restraining order.

16. The objections officer requested an assessment from Centrelink as to whether it would be unreasonable for the child to reside with Mr Nasser. The assessment was received by the Agency on 19 May 2020 and is included in the Registrar’s documents. The assessment contains little detail. It states that the assessor considered that it is unreasonable for the child to live with Mr Nasser but does not set out the basis for that conclusion. The tribunal notes that the assessment was undertaken as a file assessment, rather than as a face-to-face assessment. It was based on information provided in relation to a recent assessment undertaken for the purposes of the child’s Centrelink entitlements. Given that the assessment was not undertaken until more than four months after Ms Swanston made her application and noting the lack of detail in the assessment the tribunal found that it was not persuasive in determining whether at the time of Ms Swanston’s application it was unreasonable in the circumstances for Mr Nasser to care for the child because of extreme family breakdown or a serious risk to the child’s physical or mental wellbeing from violence or sexual abuse in the home of Mr Nasser.

17. When Ms Swanston made her application for the administrative assessment of child support for the child, the child had not spent more than a few months out of Mr Nasser’s care. The tribunal is of the view that this is not a substantial period and, therefore, is not satisfied that there was extreme family breakdown at the time of Ms Swanston’s application because Mr Nasser had not cared for the child for a substantial period at that time. The tribunal went on to consider whether there were other circumstances that indicate extreme family breakdown.

18. The tribunal does not doubt that the child did not wish to live with her father when Ms Swanston made her application for administrative assessment of child support. The oral and documentary evidence before the tribunal, including the assessment made by Centrelink, points to this and the evidence is consistent with significant difficulty and a deterioration in the relationship between the child and her father. The tribunal had no reason to doubt Ms Swanston’s evidence that the child has told her that she is fearful of her father and of returning home to live with him and that Ms Swanston believes this to be true. However, the tenor of SMS messages that were exchanged between the child and her father since the child commenced living with Ms Swanston, including the messages exchanged during the period on and around the time when Ms Swanston made the application for administrative assessment of child support, is not consistent with this being the case. The tribunal observes that a message sent by the child on 18 January 2020, less than three weeks after Ms Swanston made her application, gives some indication that the child’s desire to enhance her performance during her last year of school may have played a part in her deciding to live with Ms Swanston instead of Mr Nasser. The extent of physical contact between the child and Mr Nasser is not clear from the evidence. However, the tribunal is of the view that the evidence demonstrates that the child and Mr Nasser communicated with each other frequently and extensively prior to and after Ms Swanston making her application when Ms Swanston was providing care for the child.

19. The tribunal considered the oral and documentary evidence carefully. While the tribunal acknowledges that the evidence is consistent with the relationship between the child and her father being difficult, strained and tense the tribunal is not satisfied that the evidence establishes that there was extreme family breakdown or that there was a serious risk to the child’s physical or mental wellbeing from violence or sexual abuse in the home of Mr Nasser when Ms Swanston made her application. Therefore, the tribunal is not satisfied that it was unreasonable for the child to live with Ms Swanston when Ms Swanston made her application. As Mr Nasser did not consent to the child living with Ms Swanston, when Ms Swanston made the application, Ms Swanston was not an eligible carer in relation to the child at that time. Therefore, the requirements for the acceptance of her application are not satisfied.

20. It was clear that Ms Swanston is distressed and aggrieved by what she perceives as the unfairness of her not receiving child support in circumstances where the child is living with her and she is providing care for the child. However, as explained at the hearing the tribunal cannot change the law and in this review the tribunal is bound to apply the law as in force at the time when the decision under review was made. The legislative requirements for accepting an application for the administrative assessment of child support for a child made by a non-parent carer to be accepted recognise the serious consequence of accepting such an application, being that the child’s parent is compelled by law to pay the non-parent carer to care for their child. While the tribunal has made its decision for different reasons to the reasons of the objections officer the tribunal has determined that the legislative requirements for Ms Swanston’s application to be accepted are not met in this case.

DECISION

The decision under review is affirmed.