Racey and Aaberg (Child support)

[2020] AATA 3652

Racey and Aaberg (Child support) [2020] AATA 3652 (19 June 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC019025

APPLICANT:  Mr Racey

OTHER PARTIES:  Ms Aaberg

Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  19 June 2020

DECISION:

The decision under review is set aside and, in substitution, Mr Racey is recorded as providing 0% care and Ms Aaberg is recorded as providing 0% care to [Child 1] with effect from 17 November 2019.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – neither parent provided care for the child - existing percentage of care determination revoked and new determination made - decision under review set aside and substituted

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 Racey and Ms Aaberg are the parents of [Child 1] and [Child 2]. This case concerns the parents’ recorded care of [Child 1] who was born on 9 May 2002.

2. By way of background, the Child Support Agency (“the CSA”) found that a change in care occurred on 12 August 2019, at which point Ms Aaberg started providing full-time care, but because the change in care was not reported promptly, Mr Racey was recorded as providing 0% care with effect from 12 August 2019 and Ms Aaberg was recorded as providing 100% care with effect from the date of notification, which was 15 October 2019.

3. On 25 November 2019, Mr Racey informed the CSA of another change in care. He said that [Child 1] ceased being in Ms Aaberg’s care from 17 November 2019. The CSA decided to record both parents as providing 0% care from 17 November 2019, and the child support case was terminated in respect of [Child 1]. Ms Aaberg promptly objected to that decision. An objections officer allowed her objection and decided to not record a change in care; Ms Aaberg continued to be recorded as providing 100% care. Mr Racey promptly applied to the Tribunal for further review. I heard the matter on 19 June 2020. Mr Racey and Ms Aaberg gave sworn evidence by conference phone.

4. Ms Aaberg lives in [Town 1]. [Child 1] commenced an apprenticeship in November 2019 in [Town 2], which is where [Mr A], who is Ms Aaberg’s father, lives. According to Google Maps, [Town 1] and [Town 2] are about a 482-kilometre / five-hour and twenty-minute drive apart.

5. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (“the Act”). The term “care” is not defined in the Act. Departmental policy has been developed to assist decision-makers. The Tribunal is not bound by departmental policy. The relevant policy appears at 2.2.1 of the Child Support Guide.

Older children living away from home

Generally, older children who live independently and separately from their parents or carers provide for many of their own needs. This may include meeting their own ongoing daily needs (such as meal preparation, transport, socialising, etc.) as well as making their own decisions about their daily activities, schooling and health issues. Therefore, it may be difficult to establish whether a person provides care for an older child who lives separately from that person.

Where a person provides substantial financial support to an older child living away from home, the Registrar will generally consider that financial support as an indicator that the person is continuing to provide care for the child. The support can be in relation to daily costs such as food, accommodation and transport, and/or longer term costs such as school fees, paying for airfares home for holidays, clothing, health and dental care, etc.

While financial support is often a key factor in determining whether a person cares for a child who lives away from home, it will not always be the sole determinant. In cases where the financial support provided is limited, and other factors exist that suggest that the person continues to care for the child, the Registrar will consider whether the person is actively involved in major decisions relating to the child. For example, decisions relating to the child's health, schooling, relationships, career, etc. may be indicators that the person continues to provide care for the child.

Example: Rusty and Nichol have one child, Victoria, who is 16 and working part time after leaving school early. Rusty helps Victoria find a suitable flat and pays the bond so that Victoria can move closer to work. Rusty helps Victoria to pay for rent and utilities, and assists with other expenses such as buying work clothes and arranging and paying for medical appointments. Rusty also helps Victoria with decisions about things like finding alternative study options for further education. Every weekend Rusty does Victoria's laundry and provides cooked meals for the week. The Registrar would determine that Rusty continues to care for Victoria for child support purposes despite Victoria living separately from Rusty.

Example: Marian and Jaquie have one child, Judy, who is 17 and working as an apprentice. Judy decides to rent a room in a share house. Jaquie helps Judy move in and pays the cost of petrol on the occasions Judy comes back for a visit. Jaquie also makes deposits into Judy's bank account every now and then if Judy needs some extra cash to make ends meet. Judy pays for rent, utilities and any other expenses, and shares in household chores including meal preparation and cleaning. Unless there were other relevant factors, the Registrar would determine that Judy is living independently and Jaquie does not care for Judy for child support purposes.

1. Mr Racey’s main submission was that when [Child 1] commenced his apprenticeship he was earning over $600 per week and was consequently financially independent.. Mr Racey did not provide any documentation in support of that submission. Ms Aaberg said [Child 1] generally earned less than $600 per week. She did not provide any documentation in support of that submission, but at the hearing she said she had copies of [Child 1]’s payslips. By way of example, she appeared to read that [Child 1] earned $594.56 during the week ending 25 March 2020, and $539.44 during the week ending 1 April 2020. That small sample of payslips suggests that [Child 1] earns approximately ($539.44 + $594.56) x 26 = $29,484 per annum. Mr Racey said [Child 1] was earning more in late 2019 (which was prior to the COVID-19 pandemic), and Ms Aaberg said he was not. Both parents were agreeable to me proceeding on the basis that he was earning approximately $30,000 per annum.

2. Ms Aaberg said that when [Child 1] commenced his apprenticeship he was on probation, and when he moved to [Mr A’s] property, no money was being paid to [Mr A]. She said that around Christmas 2019, when it looked like [Child 1] would continue with his apprenticeship, a decision was made to pay [Mr A] $150 per week for the accommodation that he was providing. Ms Aaberg said the payments were usually made fortnightly, in cash, either via [Child 1] when he visited her or via [Mr A’s] wife who lives near Ms Aaberg. (Ms Aaberg explained that [Mr A] and his wife do not live together.) I asked Ms Aaberg why she did not simply transfer the funds to [Mr A’s] bank account. She said it was easier to make cash payments. I asked her why that was easier. She said she did not have [Mr A’s] bank account details. I note that the provision of bank account details is not a complicated process.

3. Ms Aaberg provided a number of heavily redacted bank account statements. The statements do not identify the account holder, but Ms Aaberg said that she was the account holder. There was a transfer “TO [CHILD 1] [BANK]” of $1,000 on 14 January, presumably in 2020. Ms Aaberg said that payment was for [Mr A’s] provision of accommodation. I note that $1,000 is not a multiple of $150. Presumably, on Ms Aaberg’s account of events, [Child 1] was required to withdraw the $1,000 in cash and give it to [Mr A], or transfer the funds to [Mr A’s]’ bank account if [Mr A] had given [Child 1] his bank account details. I note that, on Ms Aaberg’s account of events, the decision to start paying [Mr A], and pay him in cash, was made after she had been informed that Mr Racey was disputing that [Child 1] was still in her care.

4. Ms Aaberg said [Child 1] initially returned to her home every weekend. In an undated letter that the CSA received on 9 December 2019, [Mr A] stated that [Child 1] “has already returned home once after only being here for 2 weeks.”

5. Ms Aaberg provided the first page of a two-page “Contract to Buy a Motor Vehicle”. She is the listed buyer. The contact is for the sale of a [vehicle], and the total contract price is $9,500. Ms Aaberg said she bought the vehicle for [Child 1] in March 2020 after another vehicle that she bought for him in mid-2019 became too unreliable.

6. Ms Aaberg said she also paid for [Child 1]’s fuel, phone, medical insurance, and some groceries. She said she prepared dinners for him and froze them and he collected them when he visited her. She added that that still occurs, even though he is 18 years old. She said she also had regular contact with [Child 1] and provided him with emotional support.

7. The case is a difficult one. I accept that Ms Aaberg was providing significant financial support, although it is difficult to precisely quantify that support, and she was also providing emotional support and other support, such as preparing his frozen dinners. However, I am also mindful that he was earning a significant income. Ms Aaberg submitted, in effect, that his earnings were insufficient to enable him to be financially independent. I do not accept that submission. As a benchmark, I have considered the information contained in “A guide to Australian Government payments” for the period from 20 September 2019 to 31 December 2019. (Historical versions of the publication are available on the internet.) A 17‑year old youth allowance recipient who was living away from home at that time would have received $455.20 per fortnight, which equates to $11,835 per annum, and if they were paying $300 per fortnight in rent for shared accommodation, they would have been entitled to an additional $92 per fortnight, or $2,392 per annum, in rent assistance.

8. When [Child 1] commenced his apprenticeship, he was earning approximately twice as much as he would have been receiving if he were dependent on income support payments. When he commenced his apprenticeship, he was earning an income that enabled him to be financially independent. Ms Aaberg continued to provide him with financial support, and, to the extent possible given their geographical separation, other support, as parents sometimes do in such circumstances, but [Child 1] was not in her care. A change in care occurred on 17 November 2019, and it was appropriate to record both parents as providing 0% care to [Child 1] from that date pursuant to sections 49 and 54F of the Act.

DECISION

The decision under review is set aside and, in substitution, Mr Racey is recorded as providing 0% care and Ms Aaberg is recorded as providing 0% care to [Child 1] with effect from 17 November 2019.