Bartoletti and Schroff (Child support)

[2020] AATA 6120

Bartoletti and Schroff (Child support) [2020] AATA 6120 (13 November 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC019798

APPLICANT:  Mrs Bartoletti

OTHER PARTIES:  Mr Schroff

Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  13 November 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made – 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

1. Mrs Bartoletti and Mr Schroff are the parents of [Child 1] who was born in 2005. A child support case was registered in 2007 with what is commonly called the Child Support Agency or CSA.

2. From 11 October 2019, Mrs Bartoletti was recorded as providing 14% care and Mr Schroff was recorded as providing 86% care to [Child 1].

3. On 26 January 2020, Mrs Bartoletti informed the CSA that she had been providing full-time care since 13 January 2020. On 21 February 2020, Mr Schroff agreed with the information that Mrs Bartoletti had provided, but on 26 February 2020 he contacted the CSA again and it relevantly noted:

   [Mr Schroff] advised that there has been changes in care since he spoke with Service Officer, child has actually returned to his care. He said he isn’t sure what is happening with child whether this is permanent or whether she will return to [Mrs Bartoletti]’s care.

   [Mr Schroff] explained the change originally occurred as [Child 1] had run away to her mother’s place. He was trying to get her to go to the doctors [redacted by CSA]. As soon as she found out she ran away from home.

   [Mr Schroff] stated he is working with Child Services to help him as it is safer for child to stay with him and to get her some help. There has been a history with child services with [Mrs Bartoletti].

4. The CSA wrote to each parent and asked them to provide evidence in support of their respective accounts of events. Neither parent responded to that letter and no further action was taken by the CSA until Mrs Bartoletti contacted it again on 16 May 2020. That contact appears to have been prompted by events that occurred around 8 May 2020.

5. On 22 May 2020 the CSA decided to not record a change in care from 13 January 2020. Mrs Bartoletti promptly objected to that decision. On 28 August 2020 an objections officer allowed her objection and decided to record Mrs Bartoletti as providing 50% care and Mr Schroff as providing 50% care with effect from 13 January 2020. Mrs Bartoletti promptly applied to the Tribunal for further review.

6. Meanwhile, the CSA made two further care decisions. It decided to record Mrs Bartoletti as providing 100% care from 8 May 2020, and it decided to record Mr Schroff as providing 100% care from 18 September 2020.

7. I heard Ms Bartoletti’s application for review on 13 November 2020. I phoned Mr Schroff at the scheduled hearing time. A recorded message stated that the number I had phoned was not receiving incoming calls. I phoned him two more times and received the same message on both occasions. The hearing proceeded in his absence. Mrs Bartoletti gave sworn evidence by phone.

8. Mrs Bartoletti has provided conflicting evidence concerning her care of [Child 1]. On 16 May 2020 the CSA reminded her that she had been recorded as providing 14% care from 11 October 2019. It appears that she initially disputed that decision but then acknowledged that it was correct, adding that she had been “forced” to allow Mr Schroff to provide care from that date: pages 22 and 33 of the hearing papers.

9. On 18 May 2020, [Ms A], support worker, [Organisation 1], wrote a letter in respect of Mrs Bartoletti’s care of [Child 1] and relevantly stated:

   [Mrs Bartoletti] and her children[1] were referred to our service on 30 July 2018 and have been actively engaging and working with the service since this date. [Child 1] has been in the primary care of [Mrs Bartoletti] throughout the two year period in which [Organisation 1] has been supporting the family.

   [1]During the hearing I asked [Mrs Bartoletti] whether she had kept a record of her nights of care of [Child 1], and she replied that she had not. She added that she has eight children.

10. [Ms A]’s evidence that Mrs Bartoletti provided primary care to [Child 1] “throughout the two year period” is inconsistent with Mrs Bartoletti’s acknowledgement that [Child 1] was in Mr Schroff’s primary care from 11 October 2019.

11. On 18 May 2020, Mrs Bartoletti’s ex-husband, [Mr B], provided a statement which included the following (with typographical errors in the original):

    I know that [Child 1] lives with [Mrs Bartoletti] since October 2019 and i know that [Child 1] barely Sees Her father as he dont want nuthing to with her. And kick [Child 1] out in October.

12. Again, that evidence is inconsistent with Mrs Bartoletti’s own evidence.

13. Mrs Bartoletti also provided an undated statement from [Ms C] which does not shed any light on the relevant issues in this case.

14. On 20 May 2020, Mrs Bartoletti provided a letter from [Ms D], family support worker, [Organisation 1]. It relevantly states:

    I am a family support worker and have been working with [Mrs Bartoletti] and her children for approximately 2 years.

    …

    I can confirm [Child 1] has been permanently dwelling with [Mrs Bartoletti] for the majority of this 2 year period.

    I have referred back to my case notes and have noted that in October 2019 [Child 1] was considering staying with her father 50% and her mother 50%. Soon after this [Child 1] informed her father would not permit her to choose 50/50 and also would not allow her to see [Mrs Bartoletti] on weekends. This appeared to cause [Child 1] some distress, as she informed me she wished she could have a choice in the matter. The reason I was able to still see [Child 1] during this period is because she would secretly text her mother to collect her so that they could spend time together.

    This lead [sic] to a back and forth period, of which I cannot confirm dates, as [Child 1] was sometimes as [sic] [Mrs Bartoletti]’s residence and was not at other times. It appeared [Child 1] was staying between houses, depending on what family conflict was occurring. …

15. On 1 June 2020 the CSA contacted Mrs Bartoletti about her objection to its original decision to not record a change in care from 13 January 2020. It noted:

    * [Mrs Bartoletti] has provided the following grounds for her objection:

    [Child 1] has been in my care 100% since 13 January 2020 and she had not spent any nights with [Mr Schroff].

16. On 3 August 2020 the CSA contacted Mrs Bartoletti again and noted:

    Discussed objection, [Mrs Bartoletti] advised the care for [Child 1] was 50/50 care from January as per the letter supplied during the original decision.

17. The reference to “the letter” appears to be a reference to [Ms D]’s letter that Ms Bartoletti provided to the CSA on 20 May 2020.

18. On 28 August 2020 the CSA phoned [Ms D] and noted:

    [Ms D] advised that her last closing visit was May 2020 and [Child 1] was back with her mother.

    Prior to this [Ms D] said that from discussions with [Child 1] she was back and forwards between the mum and dad. As the statement notes [Child 1] may have secretly been seeing [Mrs Bartoletti] as [Mr Schroff] would not allow [Child 1] to see the mum. [Ms D] said that she had documented as much as she could from the info provided by [Child 1] to her she could not be more exact from January 2020.

19. At the hearing, Mrs Bartoletti stated that Mr Schroff provided care for two or three weekends during January and February 2020. I asked her what pattern of care was provided in March 2020. She said she could not remember. She then said she thought [Child 1] went to live with Mr Schroff, and she (Mrs Bartoletti) provided care every second weekend until May 2020.

20. On 7 August 2020, Mr Schroff acknowledged that he ceased providing care from 8 May 2020. As noted earlier, the CSA has recorded Mrs Bartoletti as providing 100% care form 8 May 2020.

21. Mrs Bartoletti has provided a number of inconsistent statements concerning her provision of care. I consider her to be an unreliable witness. I consider the most reliable evidence on point to be [Ms D]’s evidence. I accept that the parents’ care of [Child 1] from 13 January 2020 was “back and forth”, and, in the absence of reliable evidence concerning the precise provision of care, I find that each parent’s care is fairly reflected for child support purposes as 50% care from 13 January 2020: sections 50, 54B and 54F of the Child Support (Assessment) Act 1989.

DECISION

The decision under review is affirmed.