Bomford and Duerk (Child support)

[2021] AATA 2426

Bomford and Duerk (Child support) [2021] AATA 2426 (7 June 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/AC021055

APPLICANT:  Miss Bomford

OTHER PARTIES:  Child Support Registrar

Mr Duerk

TRIBUNAL:Presiding Member: P Noonan

Member M Reid

DECISION DATE:  07 June 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – whether a terminating event happened in relation to the child – child a member of a couple – neither parent had care of the child – terminating event happened – 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

BACKGROUND

1. On 9 March 2021 an objections officer, acting as a delegate of the Child Support Registrar, decided to disallow an objection lodged by Miss Bomford on 23 November 2020 in this matter with respect to an original decision made on 11 November 2020.

2. The original decision was that both Miss Bomford and Mr Duerk have 0% care of the child from 1 September 2019 due to a terminating event.

3. This review is undertaken in respect to the care of one child. Miss Bomford is the child’s sister and Mr Duerk is the child’s father. The child’s mother is not a party to this matter.

4. A hearing was held by the Tribunal on 7 June 2021. The Tribunal made several attempts to contact Miss Bomford at the time set for the hearing but was unable to contact her. The Tribunal is satisfied that Miss Bomford has been notified of the date, time and manner of the hearing, including by written notice and SMS reminder prior to the hearing. The Tribunal determined to proceed with the hearing and took verbal evidence from Mr Duerk and also refers to Miss Bomford’s written application to the Tribunal containing her reasons for appeal and the hearing papers. The Tribunal notes that there is no formal existing care arrangement in effect with respect to the care of the child in this matter.

CONSIDERATION

1. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

2. The law relevant to care percentage determinations is found in the Act. Section 12 of the Acts sets out when a child support terminating event occurs. One of these events is when a child becomes a member of a couple.

3. Mr Duerk submitted that on 1 September 2019 the child had commenced living on a permanent basis with her boyfriend at her boyfriend’s parents’ house and away from Miss Bomford. The child has subsequently had a baby, born in September 2020. Mr Duerk noted that he has been paying child support to Miss Bomford. He stated that the child has informed him that Miss Bomford has only provided the occasional financial assistance to her in that time, consisting of an occasional small cash payment and some phone cost assistance.

4. In her application for review with the Tribunal Miss Bomford submitted that she has been providing ongoing financial support to the child and therefore should still be considered the child’s carer.

5. Miss Bomford wrote in her application for review that she had provided more than enough information to prove that she was continuing to financially support the child. She agreed in conversations with the Department that the child had left her residence from 1 September 2019. Ms Bomford provided multiple [shopping] receipts and some evidence of money transfers. Miss Bomford also supplied evidence of some cash payments to the child between 29 January 2020 and 18 December 2020. However, the primary issue in this case, for determination is whether a terminating event occurred.

6. In this instance the Registrar has decided that a terminating event occurred from 1 September 2019. Section 5 of the Act sets out (amongst other considerations) that a member of a couple means a person who is living with another person as the partner of the other person on a genuine domestic basis although not legally married to the other person. Clearly the child had combined her resources with her partner from that date and was in a committed and sexual relationship with her partner, as evidenced by the birth of the couple’s child, in early September 2020.

7. On the evidence before it the Tribunal finds that, from 1 September 2019 the child was a member of a couple. Accordingly, under section 12 of the Act, a terminating event did occur and, under section 74 of the Act, the Registrar must give effect to that event. The limited evidence before the Tribunal with respect to some financial support provided to the child by Miss Bomford after this date is therefore not relevant.

8. Accordingly, neither Miss Bomford nor Mr Duerk can have more than 0% care of the child from 1 September 2019.

DECISION

The decision under review is affirmed.