Tribunal: Member Peter Jensen

On 11 January 2018, the Administrative Appeals Tribunal set aside a decision made by an objections officer of the Department of Human Services – Child Support and substituted revised percentages of care for the parties to the application.

Mr Simmons and Miss Dune are the parents of a child who was born in 2003. This decision concerned the percentage of care of the child between 5 June 2017 and 31 August 2017. Mr Simmons was paying child support to Miss Dune and he submitted that from 1 March 2017 the child was not in the care of either parent. This would be a ‘terminating event’ under subsection 12(2AA) of the Child Support (Assessment) Act 1989 which would mean child support would no longer need to be paid. Miss Dune submits that she had been providing full-time care of the child from 5 June 2017. Centrelink accepted this for family tax benefit purposes and the Department of Human Services – Child Support accepted this fact for child support purposes. However, the Department recorded her as providing full time care from 12 July 2017 because Miss Dune delayed in advising of the change in care within a reasonable period.[1] Mr Simmons objected to the Department’s decision and an objections officer allowed his objection, terminating the child support case. This decision was the subject of the review by the Tribunal.

The task before the Tribunal was to determine whether a terminating event occurred. The Tribunal considered evidence provided by both parties to determine whether the child in fact wasn’t in the care of either parent.

Miss Dune gave sworn evidence that the child was in her physical care every night from 5 June 2017 to 30 August 2017. The child’s Youth Justice Service Centre caseworker provided a written letter that confirmed the child had resided with Miss Dune from 5 June 2017 to 4 September 2017. The caseworker also provided a chronology of contact with the child and Miss Dune which is consistent with Miss Dune’s evidence that he remained in her full-time care until at least the end of August 2017.

Mrs Simmons, representing Mr Simmons in the matter, submitted Miss Dune had not provided physical care every night in that period. She said that the child resided in various locations, including with friends and his sister, and this was evidenced by social media communications and police contact with them. Mrs Simmons provided some photos and social media records in an attempt to show that the child was not in the care of Miss Dune at particular times, some late at night. The Tribunal stated this evidence shed almost no light on the more substantial issue of whether the child was in Miss Dune’s general full time care.

Mr Simmons and Mrs Simmons provided other evidence which also raised suspicions about whether the child remained in Miss Dune’s full-time care. The Tribunal stated it was required to make findings of fact on the balance of probabilities, based on the evidence that was provided and decided that a mere suspicion, without more, is an insufficient basis upon which to make such a finding.

Based on the evidence, the Tribunal found that a terminating event did not occur prior to 31 August 2017. The Tribunal set aside the decision under review and, in substitution, decided to record Miss Dune as providing 100% care and Mr Simmons as providing 0% care to the child from 12 July 2017.

Names used in all child support decisions are pseudonyms so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

Read the full written decision on Austlii.

 

[1] See sections 54G, 54F, 49, 50 and 54B of the Child Support (Assessment) Act 1989.