Tribunal: Member Yvonne Webb

This review is about the child support payable by Mr Bennet to Ms Moven from 19 October 2016 for two of their children. The children will be referred to as Child 1 and Child 2 for privacy purposes. The parents were separated in 2015 and Ms Moven contacted the Department of Human Services (Child Support Agency) in October 2016 and applied for a child support assessment for the two children claiming she had 100% care of the children. The Child Support Agency accepted Ms Moven’s application and Mr Bennet objected, claiming he had 100% care of the two children. An objections officer in the Child Support Agency disallowed Mr Bennet’s objection and he applied to the AAT for a review of the decision.

A statutory formula is used when calculating the child support payable by one separated parent to the other.[1] This formula contains variables such as the percentages of care the parents have of the children. In circumstances such as this case, the percentage of care is assessed by the number of nights that a parent has or is likely to have care of the child during the relevant period.[2]

Contradictory evidence was provided by the parents. Mr Bennet was adamant that Child 1 was in his 100% care from 3 October 2016 to 18 January 2017 and that Child 2 has been continuously in his 100% care since 3 October 2016. Ms Moven on the other hand was adamant that she had 100% care of both Children since the separation and that, although the two children visited Mr Bennet regularly, he did not have any overnight care for Child 1 and did not have a pattern of overnight care of Child 2 until February 2018.

Mr Bennet provided a range of supporting documentation for his position including statements from neighbours, schools, a hospital and the children themselves.

Ms Moven provided letters from her two eldest children in support of her position, which both stated that the children spent 100% of their nights with their mother. Ms Moven also provided a letter from the children’s respective schools.

The AAT did not find any of Mr Bennet’s supporting statements helpful. In relation to the statements from Child 1 and Child 2, Ms Moven stated that Mr Bennet directed the boys to write those statements and that they were false. While it was very difficult to know where the truth lay in relation to the care of Child 1 and Child 2, the AAT had concerns that the statements from Child 1 and Child 2 may have been obtained under duress. A further letter that Child 1 wrote more recently added weight to the AAT’s concerns.

On balance, the AAT found that the most compelling third party evidence came from the eldest children because they were in a better position to witness a pattern of overnight care than the other third parties. They both asserted that Ms Moven had 100% care of Child 1 and Child 2.

Having considered the contradictory information provided, the AAT was not convinced that there was sufficient evidence to support a determination that Mr Bennet had care of Child 1 and Child 2 in the relevant period from 19 October 2016. The AAT considered that the evidence was not compelling enough to warrant overturning the determination made by the Child Support Agency.

The Tribunal affirmed the decision under review.

Read the full written decision on AustLII.

 

[2] Section 54A of the Child Support (Assessment) Act 1989