Bostick and Chaucer (Child support)

[2021] AATA 3179

Bostick and Chaucer (Child support) [2021] AATA 3179 (26 July 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC021051

APPLICANT:  Ms Bostick

OTHER PARTIES:  Child Support Registrar

Mr Chaucer

TRIBUNAL:Member H Moreland

DECISION DATE:  26 July 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – whether child living independently – whether a child support terminating event had occurred – 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. Ms Bostick and Mr Chaucer are the parents of [Child 1]. Mr Chaucer is the parent liable to pay child support.

2. On 30 October 2020, Services Australia – Child Support (Child Support) determined that Ms Bostick had a percentage of care for [Child 1] of 0% and that Mr Chaucer had a percentage of care of 0% from [April] 2020.

3. Ms Bostick lodged an objection to this decision on 12 November 2020. This objection was disallowed by an objections officer on 2 March 2021. On 18 March 2021, Ms Bostick lodged an application to the Administrative Appeals Tribunal (the tribunal) for a review of the decision. The hearing took place on 28 June 2021. Ms Bostick and Mr Chaucer spoke to the tribunal via conference telephone and gave sworn evidence. In making its decision, the tribunal considered the documents provided by Child Support (82 pages), which were also sent to Ms Bostick and Mr Chaucer.

CONSIDERATION

1. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

2. The tribunal also referred to the Child Support Guide (version 4.57 – released 1 July 2021) (the Guide) in making this decision. The Guide sets out the approach taken by Child Support in its consideration of child support matters. It expresses policy and the tribunal is not bound by such policy; however, in Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179, the Full Court of the Federal Court held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the relevant legislation. The tribunal adopts this approach in the present matter.

What was the care of [Child 1] from [April] 2020?

1. In this matter, it is not in dispute that Mr Chaucer had 0% care of [Child 1]. What is in dispute is the level of care that Ms Bostick had for [Child 1] from [April] 2020.

2. As shown in the Child Support papers, an incident occurred at the home of Ms Bostick [in] [April] 2020. As a result of this incident, [Child 1] was arrested and a Victoria Police member applied for an intervention order against [Child 1], which was granted. Under the order, [Child 1] was prevented from approaching or remaining within 5 metres of Ms Bostick, and from going within 200 metres of Ms Bostick’s home. 

3. Ms Bostick told the tribunal that [Child 1] had temporarily left her care after this incident but returned within three to five weeks. Ms Bostick said that after the incident, [Child 1] had gone to Melbourne to stay with Ms Bostick’s [relative], but that shortly after this, Ms Bostick’s [relative] had taken her own life. Ms Bostick said that [Child 1] periodically returned to her home after this, despite the intervention order. Ms Bostick told the tribunal that local police were aware that this was occurring.

4. Ms Bostick submitted oral evidence to the tribunal about [Child 1]’s care from [April] 2020 onwards. The tribunal found this evidence to be inconsistent and at times, incoherent. At one point of the hearing Ms Bostick said that [Child 1] returned fortnightly for three to four nights at a time from the date she left ([April] 2020). At another point of the hearing Ms Bostick said that the June long weekend was the first time [Child 1] had returned to her home. Ms Bostick also said at another point of the hearing that when [Child 1] returned to [Region 1] for three to four nights at a time, [Child 1] sometimes stayed with her and sometimes stayed elsewhere. Ms Bostick told the tribunal that it was important to [Child 1] to see the animals at her home at the times that she returned. Ms Bostick told the tribunal that [Child 1] stayed with her for the period from July through September (inclusive) because of the COVID-19 pandemic. The tribunal notes that Ms Bostick had told Child Support that [Child 1] had returned to her care on 3 July 2020.[1]

10.The tribunal finds it is unable to rely on the evidence provided by Ms Bostick because of its inconsistency and incoherence, particularly as there is no independent evidence to support Ms Bostick’s oral submissions to the tribunal.

11.Further, the tribunal also considered the following statement by a Child Support decision-maker on page 52 of the T documents:

I am satisfied that [Child 1] left Ms Bostick [sic] care when she was arrested after an incident between [Child 1] and her mother Ms Bostick ([date]/04/2020) and that [Child 1] has been supporting herself and living independently of both parents since this date.

[1] T documents, p 22.

12.After the hearing, the tribunal asked for clarification regarding this statement and for information about what Centrelink payments [Child 1] was receiving during the relevant period.

13.The response from Centrelink included a comprehensive list of youth allowance payments that [Child 1] had received and confirmation that she received youth allowance on an “independent/homeless/away from home” basis from 9 April 2020. Further, [Child 1]’s address, according to the Centrelink records provided, at the relevant time, was in suburban Melbourne, rather than [Region 1] where Ms Bostick is based. The tribunal notes it is possible that this is the address of Ms Bostick’s [relative] and it was never updated but it is unable to reach any conclusion about that based on the evidence before it.

14.While [Child 1] was receiving youth allowance as an independent person, it does not necessarily follow that Ms Bostick had 0% care of her, even if [Child 1] was spending a substantial number of nights away from home.

15.The tribunal referred to the Guide, which states:

Determining whether care exists

An object of the CSA Act is 'that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings' (section 4(2)(c)). The CSA Act does not define the term 'ongoing daily care', however the Registrar will take into account a number of factors in determining whether a person cares for a child.

In most cases, it will be relatively clear whether and to what extent a person is caring for a child. However, where there is doubt, the Registrar will consider whichever of the following are relevant to the particular case:

·To what extent the person has control of the child, including having overall responsibility for the child and making:

omajor decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and

oarrangements for others to meet the needs of the child (delegated care).

·To what extent the person meets the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra-curricular activities.

·To what extent the person pays for the costs of meeting the needs of the child.

·To what extent the person otherwise provides financial support for the child.

·To what extent the child provides for his or her own needs or has those needs met from another source.

·To what extent the child is financially independent or financially supported from another source.[2]

[2] Bostick told the tribunal that from [April] 2020 onwards, she was providing [Child 1] with cash on request when [Child 1] visited her. She said this was around $20 to $30 per day that she saw her. Ms Bostick also said that she maintained an internet connection at her home for [Child 1] to use, particularly in the hope that [Child 1] would continue her [studies]. Ms Bostick said that she was engaged with [Child 1]’s school to try to encourage [Child 1] to continue her studies. Ms Bostick also said that she continued to do [Child 1]’s laundry and provide food for [Child 1] when she visited.

17.The tribunal, in considering the factors outlined above, makes the following observations. During the relevant period, [Child 1] was receiving a Centrelink payment based on her being an independent person. It appears that from [April] 2020, [Child 1] was making her own decisions and functioning as an independent person, including visiting Ms Bostick at certain times, at her own discretion. The tribunal is not convinced that Ms Bostick had any control over, nor had any responsibility for, [Child 1] from [April] 2020. Based on the evidence before it, the tribunal is unable to conclude that Ms Bostick was caring for [Child 1] in a form that meets the aforementioned policy.

18.This means the tribunal finds that Ms Bostick had a percentage of care for [Child 1] of 0% and that Mr Chaucer had a percentage of care of 0% from [April] 2020.

DECISION

The decision under review is affirmed.