Tonra and Bannister (Child support)

[2023] AATA 2666

Tonra and Bannister (Child support) [2023] AATA 2666 (7 July 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/BC025387

APPLICANT:  Mr Tonra

OTHER PARTIES:  Child Support Registrar

Ms Bannister

Mr Trump

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  07 July 2023

DECISION:

The Tribunal sets aside the decision under review and the matter is sent back to the Child Support Registrar for reconsideration in accordance with the direction that:

(a)  Mr Tonra provides 54 per cent care of [the child], Ms Bannister provides 46 per cent care of [the child] and Mr [Trump] provides 0 per cent care of [the child] from 23 May 2022; and

(b)  The application for a child support assessment made by Mr Tonra on 23 May 2022 be further considered in accordance with section 30 of the Act.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – whether the application for an administrative assessment from a non-parent carer should be accepted – decision set aside and sent back for reconsideration

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. This matter relates to an application by a non-parent carer for an administrative assessment of child support in respect of [the child] (born March 2015).

2. Ms Bannister and Mr Trump are the parents of [the child].  On 23 May 2022 Mr Tonra applied to Services Australia – Child Support (Child Support) for an administrative assessment of child support as a non-parent carer.

3. On 15 August 2022 Child Support made the decision to accept the application for child support from Mr Tonra for [the child] effective in the assessment from 23 May 2022.

4. On 1 September 2022 Ms Bannister objected to this decision and on 14 December 2022 Child Support allowed the objection and made the decision to refuse to accept the application for an administrative assessment of child support (the objection decision).

5. On 9 January 2023 Mr Tonra applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

6. The Tribunal conducted a hearing into the application on 7 July 2023.  Mr Tonra and Ms Bannister gave evidence on affirmation by conference telephone.  On 19 May 2023 the Tribunal wrote to Mr Trump advising him of the date and time of the hearing.  On 4 July 2023 and 6 July 2023 Mr Trump was sent SMS text messages reminding him of the details of the hearing.  The Tribunal attempted to contact Mr Trump on several occasions on 7 July 2023 at the time advised but was not successful.  He did not participate in the hearing.

7. Child Support provided the Tribunal and the parties with papers relevant to the matter (215 pages).

ISSUES

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

2. The issue which must be decided in this case is whether or not the application for an administrative assessment of child support made by Mr Tonra, a non-parent carer, should be accepted.

CONSIDERATION

1. Child support is ordinarily paid by one parent of a particular child to the other parent of that child.  In limited circumstances a person who is not a parent, known as a non-parent carer, can apply for an administrative assessment in order to receive child support.

2. Section 25A of the Act sets out that someone who is not a parent of a child can apply for an administrative assessment in relation to that child if the person is an eligible carer of the child.  The applicant must also apply for both parents to be assessed, cannot be living with either parent as the partner of that parent and must not have care jointly with either parent.

1. The expression ‘eligible carer’ is defined in section 7B of the Act:

   (1)In this Act, eligible carer, in relation to a child, means a person who has at least shared care of the child.

   (2)Despite subsection (1), if:

   (a)   a person cares for a child; and

   (b)   the person is neither a parent nor a legal guardian of the child; and

   (c)   a parent or legal guardian of the child has indicated that he or she does not consent to the person caring for the child;

then the person 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.

(3)For the purposes of subsection (2), it is unreasonable for a parent or legal guardian to care for a child if:

(a)   the Registrar is satisfied that there has been extreme family breakdown; or

(b)   the Registrar is satisfied 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.

1. Mr Tonra told the Tribunal that care of [the child] was initially in accordance with court orders dated 9 December 2019.  Mr Tonra said both he and Ms Bannister were following these orders until Ms Bannister began withholding care of [the child] in July 2021.

2. Mr Tonra said in accordance with these orders he was to have care of four nights a fortnight plus half the school holidays.  Mr Tonra added that Mr Trump was not granted care under the orders and had no care of [the child].

3. The Tribunal notes in evidence from Child Support a copy of final consent orders issued by the Family Court of Australia on 9 December 2019.  In relation to care the orders state that [the child] is to spend time with Mr Tonra on a fortnightly cycle with one night in week one and three nights in week two.  The orders also state this care is to be suspended during Queensland gazetted school holiday periods with the parties to share care each alternate week.  There is also provision in the orders for further overnight care on special occasions.

4. Mr Tonra told the Tribunal that after care of [the child] changed he sought a contravention application in the courts and following an interim hearing his court-ordered care commenced again from around 28 April 2022.  Mr Tonra said in a further decision of the courts he was then granted make-up care of [the child] in addition to his usual care.

5. The Tribunal notes in evidence from Child Support a copy of interim orders handed down in the Federal Circuit and Family Court of Australia on 18 May 2022.  These orders grant Mr Tonra further time with [the child] ‘in addition to the time she will spend with him pursuant to the terms of the order made on 9 December 2019’.  The additional time set out in the interim orders is:

   (a)  four nights between 5 and 9 June 2022;

   (b)  four nights between 19 and 23 June 2022;

   (c)   four nights between 17 and 21 July 2022;

   (d)  four nights between 31 July and 4 August 2022;

   (e)  four nights between 14 and 18 August 2022;

   (f)    four nights between 28 August and 1 September 2022;

   (g)  four nights between 11 September and 15 September 2022;

   (h)  four nights between 9 October and 13 October 2022;

   (i)    four nights between 23 and 27 October 2022;

   (j)    four nights between 6 and 10 November 2022;

   (k)   four nights between 20 and 24 November 2022;

   (l)    seven nights between 27 December 2022 and 3 January 2023;

   (m) four nights between 5 February and 9 February 2023;

   (n)  four nights between 19 and 23 February 2023;

   (o)  four nights between 5 and 9 March 2023;

   (p)  four nights between 19 and 23 March 2023;

   (q)  three nights between 17 and 20 February 2023;

   (r)   four nights between 30 April and 4 May 2023;

   (s)   four nights between 14 May and 18 May 2023;

   (t)    four nights between 28 May and 1 June 2023;

   (u)  four nights between 11 June and 15 June 2023;

   (v)   four nights between 23 July and 26 July 2023; and

   (w)  four nights between 6 and 9 August 2023.

6. Mr Tonra said both he and Ms Bannister were having care in keeping with the interim orders until new final orders were issued on 15 June 2023.

7. Ms Bannister told the Tribunal that Mr Tonra had no care of [the child] from around July 2021 until 28 April 2022 when he recommenced his care in accordance with the court orders dated 9 December 2019.  Ms Bannister said she did not dispute that under the interim orders dated 18 May 2022 Mr Tonra was also having additional care and this was to make up for previous care missed during the period from July 2021.  Ms Bannister said she agreed Mr Trump was having no care of [the child].

8. Ms Bannister said the final orders dated 9 December 2019 remained in place and she reiterated the additional care Mr Tonra was having was simply makeup care.  Ms Bannister said it would be unfair to consider there had been a change to the care arrangements for [the child].  Ms Bannister also pointed out that she had not received any additional financial support for [the child] even though she was having 100 per cent care for a nine-month period.

9. It is not in dispute and the Tribunal finds that at the time Mr Tonra applied for an administrative assessment of child support on 23 May 2022 he was providing care of [the child].  This care was in accordance with the court orders dated 9 December 2019.  Furthermore, in keeping with the interim orders handed down on 18 May 2022, Mr Tonra was given additional care of [the child].  This additional time commenced from 5 June 2022 and was to continue until 9 August 2023.  It is also not in dispute that Mr Trump is providing no care of [the child].

10. The Tribunal is satisfied that Mr Tonra made an application on 23 May 2022 for both parents to be assessed in respect of the costs of [the child].

11. Subparagraph 50(1)(a)(i) of the Act requires the determination of a percentage of care if an application is made under section 25A for a parent to be assessed in respect of the costs of the child.  The care percentage must correspond with the actual care the responsible person has had, or is likely to have, during the care period.  A care period is generally considered to be 12 months from the date an application is made.  In this case the application was made by Mr Tonra on 23 May 2022.

12. Mr Tonra was having care of four nights per fortnight plus half the school holidays in line with the court orders dated 9 December 2019.  Given there are 40 weeks of term in the Queensland school system and 12 weeks of holidays the Tribunal calculates this care to be 122 nights in total (80 nights during term and 42 nights during holidays).  Mr Tonra was also having additional care as per the interim court orders dated 18 May 2022.  In the 12-month care period commencing on 23 May 2022 this amounts to further care of 75 nights.[1]

    [1] The Tribunal notes there appears to be a typographical error in these court orders with overlapping care at (n) and (q).  The Tribunal has not included the care at (q) but this is not critical to the outcome.

13. The Tribunal is satisfied a pattern of care was established with Mr Tonra providing care of [the child] totalling 197 nights in the 12-month care period commencing on 23 May 2022.  This is the actual care Mr Tonra was providing notwithstanding that some of this was makeup care.

14. The Tribunal finds that Mr Tonra provides 54 per cent care, Ms Bannister provides 46 per cent care and Mr Trump provides 0 per cent care of [the child] from 23 May 2022.

15. For Mr Tonra to be considered an eligible carer under the definition in section 7B of the Act he must have at least shared care of [the child].  Shared care is defined under the Act as at least 35 per cent care but not more than 65 per cent care of the child during a care period. 

16. There are additional criteria to be satisfied under section 30 of the Act for the application for an administrative assessment of child support made by Mr Tonra to be accepted.  This includes whether or not he is, in all other respects, an eligible carer under section 7B of the Act.  The full factors that must be considered before the application from Mr Tonra could be accepted do not appear to have been taken into account in the decision made by Child Support on 14 December 2022.  This is likely because once Mr Tonra was found to have less than 35 per cent care he could not be an eligible carer and therefore his application for assessment could not be accepted.  It is therefore appropriate to remit the remainder of the decision about the application for an administrative assessment back to Child Support so that it can properly be made taking into account the levels of care found by the Tribunal.

17. The Tribunal notes that, according to Mr Tonra, new final orders were made by the courts on 15 June 2023 in relation to the care of [the child].  This would need to be the subject of a change of care notification to Child Support if either party thought it appropriate to do so.

DECISION

The Tribunal sets aside the decision under review and the matter is sent back to the Child Support Registrar for reconsideration in accordance with the direction that:

(a)  Mr Tonra provides 54 per cent care of [the child], Ms Bannister provides 46 per cent care of [the child] and Mr Trump provides 0 per cent care of [the child] from 23 May 2022; and

(b)  The application for a child support assessment made by Mr Tonra on 23 May 2022 be further considered in accordance with section 30 of the Act.