Pritchard and Bailey (Child support)

[2020] AATA 5840

Pritchard and Bailey (Child support) [2020] AATA 5840 (3 December 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/PC020049

APPLICANT:  Miss Pritchard

OTHER PARTIES:  Child Support Registrar

Mr Bailey

TRIBUNAL:Member M Douglas

DECISION DATE:  3 December 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether a parent had a pattern of care for the child – what date the parent ceased to have a pattern of care for the child – 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. The Tribunal is reviewing an objection decision dated 2 October 2020 that a delegate of the Child Support Registrar made regarding the care percentages for Miss Pritchard and Mr Bailey’s daughter, [Child 1].

2. The Tribunal notes that the Registrar acts through staff employed by the Government department known as Services Australia.  A reference to Services Australia in this decision is to be read as a reference to the Registrar.

3. The care percentages for [Child 1] used in the child support assessment were, as at 31 March 2020, 0% for Miss Pritchard and 100% for Mr Bailey.  On 31 March 2020, Miss Pritchard contacted Services Australia and advised it that Mr Bailey had not been providing care for [Child 1] since 31 December 2019.  Services Australia thereafter contacted Mr Bailey to inform him of what Miss Pritchard had advised.  Mr Bailey disputed what Miss Pritchard had said.  Further correspondence and communications then ensued between Services Australia and the parties regarding the matter.  On 2 June 2020, Services Australia revoked Mr Bailey’s care percentage for [Child 1], with that having effect on 30 December 2019, and determined that from 31 December 2019 his care percentage for [Child 1] was 0%.

4. A consequence of Services Australia’s care percentage decision of 2 June 2020 was that neither Miss Pritchard nor Mr Bailey was an eligible carer of [Child 1], and consequently, in accordance with subsection 12(2AA) of the Child Support (Assessment) Act 1989 (the Act), a terminating event had occurred.  The assessment of child support for [Child 1] accordingly ceased with effect on 30 December 2019.

5. On 24 June 2020, Mr Bailey lodged an objection to the care percentage decision.  On 7 October 2020, Services Australia allowed his objection.  It substituted a decision that read “we will continue to reflect the care of [Child 1] as 100% to [Mr Bailey] and 0% to [Ms Pritchard] and make a terminating event decision from 28 April 2020”.  In substance, what Services Australia did was to set aside its decision of 2 June 2020 and to substitute a decision that Mr Bailey’s existing care percentage of 100% be revoked with effect on 27 April 2020 and that his care percentage for [Child 1] be determined as 0% from 28 April 2020.  The consequence of that objection decision was that a terminating event occurred on 27 April 2020, rather than 30 December 2019, and the assessment ceased from that date.

6. On 14 October 2020, Miss Pritchard applied to the Tribunal for a review of that objection decision.  The Tribunal heard her application on 2 December 2020.  Both she and Mr Bailey participated by telephone and gave affirmed oral evidence.  The Tribunal has had regard to their evidence.  The Tribunal has also had regard to the following documentary evidence:

   (a)the documents Services Australia provided that related to its decision, comprising 106 pages (“hearing papers”);

   (b)a redacted copy of a statement from the Commonwealth Bank to Mr Bailey of the transactions for an account he holds with it for the period 21 November 2019 to 18 March 2020, which that Mr Bailey provided subsequent to the hearing; and

   (c)a two-page email Miss Pritchard provided to the Perth Registry of the AAT on 1 December 2020 after the hearing.

7. The Tribunal provided Miss Pritchard with a copy of the document listed at 6(b) and provided Mr Bailey with a copy of the document listed at 6(c).

ISSUE

1. The issue the Tribunal must consider is the date on which Mr Bailey ceased providing care for [Child 1] and, consequently, ceased to be an eligible carer of [Child 1].

CONSIDERATION

1. Miss Pritchard’s evidence to the Tribunal was that she resides in Perth whereas [Child 1] resides in [City 1] in Tasmania.  She said that for some time before Christmas 2019, she had only infrequent contact with [Child 1] by telephone.  She said that [Child 1] was a “rebellious teenager” and that when [Child 1] was 16 and a half years of age, [Child 1] had left her care. 

2. Miss Pritchard said that [Child 1] had been residing with Mr Bailey and Mr Bailey’s partner in a house Mr Bailey and his partner were leasing in [City 1].  Miss Pritchard said that when she spoke to [Child 1] by telephone around Christmas, she became aware from their conversation that Mr Bailey had separated from his partner and moved out of their residence, but [Child 1] continued to reside there. 

3. Miss Pritchard said that after Christmas, she started to speak more frequently with [Child 1] and that [Child 1] repeatedly told her that Mr Bailey was no longer living at the house in [City 1] and was renting another house in [City 2].  Miss Pritchard said that [Child 1] told her that Mr Bailey was not providing care for her.

4. Miss Pritchard said that eventually Mr Bailey’s former partner required [Child 1] to move out of her house because [Child 1] was unable to pay rent. 

5. Miss Pritchard said that her brother and her stepmother, who also live in [City 1], also told her that Mr Bailey was not providing care for [Child 1]. 

6. Miss Pritchard provided to Services Australia a letter dated 12 May 2020 addressed “To Whom It May Concern” that was written by [Ms A] (hearing papers, page 50).  In that letter, [Ms A] advised that she was a partner of [Child 1]’s grandfather who is now deceased.  She said that [Child 1] told her on 7 March 2020 that Mr Bailey had moved out of the house that he had been sharing with his partner at [City 1] and had moved to a property at [City 2].  She said that Mr Bailey was not supporting [Child 1].  She said that [Child 1] was unable to pay rent to Mr Bailey’s former partner and [Child 1] was told to leave the property on 29 April 2020.  She said that on various occasions, she had given [Child 1] money for food and clothing and had supplied her with a good quality mattress.

7. Miss Pritchard also provided to Services Australia an email she had received from [Ms B] dated 20 May 2020 (hearing papers page 51) in which [Ms B] identified that was [Child 1]’s aunt and that in a conversation she had with [Child 1] in March 2020 [Child 1] mentioned that Mr Bailey had not supported her or lived with her for quite some time.

8. Miss Pritchard provided Services Australia an email dated 20 May 2020 that she had received from [Ms C] (hearing papers page 54) in which [Ms C] revealed that [Child 1] was her niece. [Ms C] said that [Child 1] had been supporting herself financially.  [Ms C] said that she knew that Mr Bailey had moved to a property in [City 2] late in 2019 and that [Child 1] had told her in a conversation in 2019 that Mr Bailey was no longer living with her.  [Ms C] said that [Child 1] contacted her in April 2020 because she was out of work due to COVID-19 and needed a place to stay until she could arrange Centrelink benefits.

9. Mr Bailey’s evidence to the Tribunal was that he commenced to lease a house in [City 2] from the start of 2020, in which he lived most of the time thereafter.  He said he also stayed two days a week in the house in which he had been living in [City 1] with [Child 1] and his partner.  Until 31 December 2019, he had lived all of the time at the [City 1] house.  In other words, his evidence was to the effect that from the start of 2020 he split his time between those two houses but mainly resided at [City 2], which he described as being in the bush.  His evidence was that also on occasions, [Child 1] would stay with him at [City 2].

10. Mr Bailey’s evidence to the Tribunal was that he is also employed as a [Occupation 1] and was “2IC” for his employer.  He said that even when residing at [City 2], he would, on each workday, drive to the house at [City 1] to collect other persons his employer employed and then drive them all to the site at which they were required to work.  Those other [Occupation 1] included [Mr D] and [Mr E].

11. Mr Bailey provided to Services Australia a copy of a letter that [Mr D] wrote on 23 July 2020 (hearing papers page 76) in which [Mr D] advised that [Child 1] had not moved out of her residence, being the [City 1] residence, until 28 April 2020.  He said he knew this because he would go to that house most mornings for work to meet Mr Bailey.

12. Mr Bailey also provided a letter [Mr E] wrote dated 23 July 2020 (hearing papers page 77) in which [Mr E] also indicated that [Child 1] had not moved out of the [City 1] residence until 28 April 2020.  [Mr E] said he knew this because [Child 1] would call Mr Bailey at least five times a day to ask for money or to be picked up and dropped off at work or school.  He said that he would see [Child 1] at the house of a morning or afternoon.

13. Mr Bailey’s evidence to the Tribunal was that he bought the food that [Child 1] ate and would occasionally cook for her.  He said that after he moved to [City 2], he would often wake [Child 1] up in the morning to ensure she would go to school and on occasions he would drive her to school.

14. Mr Bailey said that he continued to pay rent of $250 a week for the [City 1] house until the end of April 2020.  He said that he also paid rent of $80 a week for the [City 2] residence.  As mentioned, he provided a copy of the statement [Bank 1] issued to him for an account he holds with it.  That revealed that the account was debited for the following amounts on the following days for transactions that were described as being for rent:

    30 November 2019  $1,000

    9 December 2019           $   600

    23 January 2020   $   640

    1 February 2020   $1,000

    1 December 2020   $1,000

    10 February 2020   $   460

    18 February 2020   $     85

    25 February 2020   $     85

    1 March 2020   $     85

    3 March 2020   $     85

    5 March 2020   $   600

    5 March 2020   $   400

    17 March 2020   $     85

15. In the email Miss Pritchard sent to the Tribunal on 1 December 2020, after the hearing, she submitted that it was not relevant that Mr Bailey paid rent for both the [City 1] property and the [City 2] property from January 2020 to 28 April 2020 because Mr Bailey was not providing care for [Child 1] in that period. She submitted that the rent he paid was for his own benefit.

16. The Tribunal prefers the evidence of Mr Bailey.  The Tribunal is satisfied from his bank statement that he continued to pay rent for the [City 1] property until 28 April 2020.  The Tribunal is satisfied that [Child 1] remained living in that property until that date.  Whilst, as Miss Pritchard submits, Mr Bailey benefited from paying rent for the [City 1] property, by doing that he also ensured that one of [Child 1]’s key needs was met; that is, that she had accommodation.

17. The Tribunal finds that Mr Bailey stayed at the [City 1] property rarely after 31 December 2019 and lived mainly at the [City 2] property that he commenced leasing from 1 January 2020.  The Tribunal accepts his evidence that whilst he did not in the main live at the [City 1] property after the end of December 2019, he would still regularly visit there during the week so as to collect other employees of his employer and drive them to the sites at which they had to work.  The Tribunal accepts his evidence to the effect that on those occasions, he would check in with [Child 1] and on occasion drive her to school. 

18. The Tribunal also observes from the copy of Mr Bailey’s bank statement in evidence that Mr Bailey frequently transferred small amounts of cash to [Child 1].  The Tribunal infers that he did that so that [Child 1] would have some money to meet some of her needs.

19. The Tribunal considers that the correspondence that Miss Pritchard provided to Services Australia that she received from [Ms A], [Ms B] and [Ms C] does not substantiate that Mr Bailey did not provide care for [Child 1] in the period from January to 28 April 2020.  In the Tribunal’s view, the letter of [Ms A] is not inconsistent with Mr Bailey’s evidence.  It confirms that he was leasing a house at [City 2] after December 2019 and that [Child 1] continued to reside at the [City 1] property until 28 April 2020.  [Ms A] indicates in that letter that she was informed in April 2020 that Mr Bailey was no longer supporting [Child 1] financially.  That accords with Mr Bailey’s evidence that his support of [Child 1] came to an end on 28 April 2020.

20. Similarly, the email from [Ms C] is also in the Tribunal’s view not inconsistent with the evidence of Mr Bailey.

21. The email from [Ms B] dated 20 May 2020 is sparse in detail.  [Ms B] says in that email that [Child 1] told her Mr Bailey was not supporting her, but that does not accord with the small cash transfers Mr Bailey was making to [Child 1].  There is no context provided relating to the conversation she had with [Child 1] and, as indicated, scant detail of exactly what was said.

22. The Tribunal accepts Mr Bailey’s evidence that he cooked on occasion for [Child 1] and that he organised her getting to school.  The Tribunal infers that it is likely that Mr Bailey and [Child 1] had regular conversations and that Mr Bailey provided her guidance during those conversations.

23. In short, and to repeat, the Tribunal accepts the evidence of Mr Bailey that he continued to provide support and care for [Child 1] until 28 April 2020.

24. Accordingly, the Tribunal affirms the decision of Services Australia.

DECISION

The decision under review is affirmed.