Pointon and Gayford (Child support)

[2024] AATA 3242

Pointon and Gayford (Child support) [2024] AATA 3242 (26 July 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/SC027463

APPLICANT:  Mr Pointon

OTHER PARTIES:  Child Support Registrar

Miss Gayford

TRIBUNAL:  Member P Jensen

DECISION DATE:  26 July 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources – father’s sole trader business ceased – some occasional cash-in-hand work since – not all bank statements provided to Child Support or tribunal – another account in another child’s name – finding that business continued after claimed date – proceedings do not concern operative decision, which expires soon – 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

1. Mr Pointon and Miss Gayford are the parents of [Child 1] who was born in 2013 and [Child 2] who was born in 2014. A child support case was registered with Services Australia – Child Support (Child Support) in 2014. Since November 2022, Mr Pointon has been providing 14% care and Miss Gayford has been providing 86% care for [the children].

2. The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of child support payable. It uses a formula which contains variables such as the parents’ adjusted taxable incomes and their percentages of care for the children. From 17 August 2022 the administrative assessment was based on Mr Pointon’s provisional 2020–21 adjusted taxable income of $22,479 and Miss Gayford’s provisional 2020–21 adjusted taxable income of $23,254. Mr Pointon was assessed to pay $446 per annum in child support. The Act also provides for a departure from the administrative assessment in certain circumstances. On 23 August 2022, Miss Gayford lodged a departure application. An original decision-maker granted the application and varied Mr Pointon’s rate of child support payable to $32,476 per annum from 1 August 2022 to 31 July 2024 (the Operative Decision). Neither parent objected to the Operative Decision.

3. On 28 July 2023, Mr Pointon lodged a departure application. An original decision-maker refused the application. Mr Pointon objected to that decision. An objections officer disallowed the objection. Mr Pointon applied to the Tribunal for further review. I conducted a directions hearing on 4 June 2024 and a substantive hearing on 26 July 2024. Mr Pointon and Miss Gayford gave sworn evidence via MS Teams.

4. Paragraph 98C(1)(b) of the Act relevantly provides that a departure decision may be made in respect of a departure application if:

   (i)... one, or more than one, of the grounds for departure referred to in [subsection 117(2)] exists; and

   (ii)... it would be:

   (A)just and equitable as regards the child, the liable parent, and the carer entitled to child support; and

   (B)otherwise proper;

   to make a particular determination under this Part; …

5. Subparagraph 117(2)(c)(ia) of the Act, commonly referred to as Reason 8, provides as a ground for departure:

   that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:

   …

   (ia)because of the income, property and financial resources of either parent; or

6. When Mr Pointon lodged his departure application on 28 July 2023, the administrative assessment for the purpose of subparagraph 117(2)(c)(ia) was the Operative Decision. Neither parent objected to that decision and I am not reviewing that decision. The Operative Decision was made on 7 December 2022. In the absence of a subsequent and significant change in circumstances that establishes a ground for departure, the Operative Decision remains in force until it expires on 31 July 2024. When Mr Pointon lodged his departure application he submitted that there had been a subsequent and significant change in circumstances (at page 158 of the hearing papers):

   The assessment was based on my earnings when I had my business. I am no longer trading with my business and am on Centrelink payments. I haven’t worked since December 2022.

7. During the directions hearing I asked Mr Pointon about his business. He said he had been operating [Company 1] as a sole trader. He said he had not sold his business; he had simply stopped trading.

8. Miss Gayford provided some evidence which suggested that Mr Pointon had worked since December 2022. On Saturday, 18 February 2023, Mr Pointon sent Miss Gayford a text message stating, “I’m at work all day tomorrow”: page 425 of the hearing papers. I referred Mr Pointon to that text message. He said he occasionally did cash‑in-hand [job task] work for a mate. He said he was paid $200 for a day’s work.

9. On Wednesday, 8 March 2023, in response to a request from Miss Gayford, Mr Pointon sent a text message stating, “Doing invoices give me a minute”: page 420 of the hearing papers. I refer Mr Pointon to that text message. He said his mate paid him to “come in and do his invoices.”

10. To appreciate the full significance of Mr Pointon’s text messages, it is necessary to consider the case more broadly. The decision-maker’s reasons for making the Operative Decision dated 7 December 2022 included the following:

    In discussing this application, Mr Pointon advises he is not working and not currently on Centrelink as his payments were stopped for non-attendance but [he] is trying to get it started again. Mr Pointon advises he is currently paying $100 per week in child support and agreed he has assets (inherited) but states they do not earn an income. Mr Pointon advises he does some cash work for a mate on the weekends when he can i.e. [job tasks] etc and that helps pay the rent and that is how he is making ends meet.

    […]

    Mr Pointon has not lodged an income tax return since 2016–17. … A letter was sent to Mr Pointon on 21 October 2022 requesting information about his income, expenses, assets and liabilities.

    […]

    As no information was provided by Mr Pointon, searches were undertaken with the Australian Taxation Office and legal notices […] were forwarded to financial institutions.

    […]

    Mr Pointon’s bank statements showed deposits totalling $125,129 for a three-month period. This would annualise to about $500,516. Mr Pointon has advised he also incurs expenses and was given an opportunity to provide evidence about these expenses, however as at the date of this decision, no information has been provided by Mr Pointon. Whilst I acknowledge Mr Pointon’s bank account statements show expenses, it is not the role of Child Support to carry out a forensic audit in relation to what may be business or personal expenses.

11. The hearing papers include statements from a number of bank accounts including [a Bank 1] “[Business]” account with an account number ending xx3459. It is in the name of “[Full name] Pointon t/as [Full name] Pointon”. The statements are for 16 June 2022 to 15 July 2022, 15 July 2022 to 16 August 2022, and 16 December 2022 to 16 January 2023. The bank account received deposits totalling $21,747, $41,427 and $22,041 respectively during those three periods. I directed Mr Pointon to provide:

    Account statements of all financial accounts to which Mr Pointon was a signatory (including savings, cheque, business, loan and credit card accounts, and including accounts that were not in his name) from 1 December 2022 to 30 November 2023.

12. Mr Pointon provided some statements for some bank accounts, but not for xx3459. During the substantive hearing, Mr Pointon said he closed xx3459 in mid-2023. Even if that were correct, it would not automatically explain why he did not comply with the directions. He did not provide any evidence from [Bank 1] to suggest that the relevant account statements were not still available.

13. I referred Mr Pointon to the statements for xx3459 for the period from 16 December 2022 to 16 January 2023. The account received significant deposits throughout that period. It received $2,630.58 + $285.78 + $1,987.26 + $2,067.04 + $2,135.32 + $2,626.29 + $210.75 + $1,432.03 = $13,375.05 via Square during the final seven days of that period. That evidence suggests that Mr Pointon’s business was still trading as at 16 January 2023 and was likely to continue trading. Mr Pointon said the deposits in January 2023 were the result of a month-long delay in the processing of electronic payments; he said the income was earned in December 2022. He did not provide any documentary evidence in support of that statement and, in the absence of such evidence, I do not accept his unsubstantiated oral evidence on the issue.

14. Mr Pointon had been aware for some time that he should provide his bank account statements in support of his departure application. On 17 October 2023, Child Support spoke to him and asked him for “all bank accounts to show what [you have] been living off since [December 2022]”: page 174 of the hearing papers. On the same day it sent a letter to him asking for “[e]vidence of your complete financials for the period 1 August 2022 to present”: page 177 of the hearing papers. The original decision-maker, when refusing Mr Pointon’s departure application, noted Mr Pointon’s failure to provide his bank account statements: page 198 of the hearing papers. The objections officer, when dismissing Mr Pointon’s objection to the original decision-maker’s decision, made the same observation: page 6 of the hearing papers.

1. It is worth noting some other matters that were discussed during the directions hearing that was conducted on 4 June 2024:

   ·    I noted that [Bank 1] had listed the bank accounts to which Mr Pointon was a signatory as at 25 October 2023: page 187 of the hearing papers. I asked him if he was a signatory to any other bank accounts. He said he had opened an account in the name of his daughter, [Ms A], because Child Support was taking money out of his account.

   ·    I asked Mr Pointon whether he had done any paid work since 25 October 2023. He said he did approximately five weeks’ work with [Company 2] “but then Child Support got onto them so it wasn’t worth me working so I left.” He said his wages from that employment were deposited into his daughter’s [Bank 2] account.

   ·    Mr Pointon said he also did approximately two and a half months’ work as a supervisor at [Company 3] but “Child Support found out about it so I resigned.” He said he resigned “two weeks ago.” He said the job “is still there for me when child support is sorted out.”

2. As at 15 July 2024, Mr Pointon owed child support arrears of $75,212: page 545 of the hearing papers.

3. During the substantive hearing, Miss Gayford noted that Mr Pointon had not provided statements from [Ms A]’s [Bank 2] bank account. Mr Pointon said he had. I noted that he had provided statements from [Ms A]’s [Bank 1] bank account. He indicated that he had gotten the banks confused. He said [Ms A] had only one bank account so his reference to a [Bank 2] account was in fact a reference to the [Bank 1] account.

4. During the direction hearing I referred to page 458 of the hearing papers. Miss Gayford stated, and Mr Pointon confirmed, that it was a receipt for a transfer of $100 on 24 February 2023 from [Ms A]’s bank account to Mr Pointon’s bank account. During the substantive hearing I noted that the $100 had not been withdrawn from [Ms A]’s [Bank 1] account: page A31 of the hearing papers. Mr Pointon acknowledged that [Ms A] must have another bank account.

5. The Operative Decision was based on deposits into Mr Pointon’s bank accounts in circumstances where he acknowledged that he did “some cash work”. In the current proceedings, Mr Pointon stated in July 2023 that he had not worked since December 2022. Other evidence indicated, and Mr Pointon acknowledged, that he did work during that period. He effectively stated that he did very little work but he also stated that the work was cash-in-hand. He did not provide any primary evidence of his earnings. Cash-in-hand transactions are usually intended to avoid such accountability.

6. Mr Pointon failed to comply with a direction to provide statements from xx3459 for the period from 1 December 2022 to 30 November 2023. He acknowledged that he opened a bank account in his daughter’s name to thwart Child Support’s attempts to recover his child support debt.

7. The hearing papers include statements from xx3459 for the period from 16 December 2022 to 16 January 2023. Those statements suggest, and I find, that Mr Pointon continued operating his business throughout that period. He was generating significant revenue, which suggests that he probably continued operating the business after 16 January 2023. The evidence does not allow me to quantify Mr Pointon’s earnings but for present purposes it is not necessary to do so. It is sufficient to note that the evidence does not establish that the Operative Decision was unjust and inequitable when Mr Pointon lodged his departure application. Reason 8 is not established in respect of Mr Pointon.

8. During the directions hearing, Mr Pointon acknowledged that there were no other potential grounds for departure. In my opinion, that acknowledgement was properly made. Child Support correctly refused Mr Pointon’s departure application: subparagraph 98C(1)(b)(i) of the Act.

9. As an aside, I note that the Operative Decision expires on 31 July 2024. From 1 August 2024 the administrative assessment will be based on Mr Pointon’s 2023–24 adjusted taxable income of $53,254 and Miss Gayford’s 2023–24 adjusted taxable income of $26,728: page 542 of the hearing papers. Mr Pointon will be required to pay $2,544 per annum in child support. The current proceedings do not directly concern that administrative assessment.

DECISION

The decision under review is affirmed.