Dawber and Dawber (Child support)

[2021] AATA 1756

Dawber and Dawber (Child support) [2021] AATA 1756 (19 March 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/HC020763

APPLICANT:  Ms Dawber

OTHER PARTIES:  Child Support Registrar

Mr Dawber

TRIBUNAL:Member K Dordevic

DECISION DATE:  19 March 2021

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that Mr Dawber’s 28 September 2020 application to have the child support assessment amended on the basis of a relevant dependent child is refused.

CATCHWORDS

CHILD SUPPORT – particulars of the assessment – whether a child is a relevant dependent child for the purposes of the Child Support (Assessment) Act 1989 – 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 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. Ms Dawber and Mr Dawber and are the parents of two children. There is a child support assessment in place in respect of their children from 31 July 2015.

2. On 28 September 2020 the father advised Services Australia – Child Support (Child Support) that he had a relevant child, [Child 1], ([born] April 2017), and asked that the particulars of the assessment be changed accordingly. On the same day Child Support amended the administrative assessment to reflect that the father had a relevant dependent child.

3. On 9 October 2020 the mother objected to this decision and on 5 February 2021 her objection was disallowed.  

4. On 9 February 2021 the mother applied to the Administrative Appeals Tribunal (the tribunal) for review of the objection decision.

5. The matter was considered on 17 March 2021.  Both the mother and the father gave sworn evidence by conference telephone.  Child Support provided the tribunal and the parties with a bundle of documents relevant to the review (folios 1 to 187). The mother provided additional documents (A1–A4), a copy of which was provided to Child Support. At hearing the father stated that he had not received a copy of the mother’s additional documents. The matter was deferred to close of business on 26 March 2021 to allow the father sufficient time to consider those documents, provided to him on the day of hearing by email. He was invited to provide written submissions in response to those documents.

6. At close of business on 19 March 2021 the father advised that he did not intend to provide any submissions in response to the mother’s additional documents. The tribunal reached its decision on 19 March 2021.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. The issue which arises in this case is whether the father has the care of a relevant dependent child.

CONSIDERATION

1. The rate of child support payable by a liable parent is usually based on an administrative assessment calculated in accordance with the relevant formula under Part 5 of the Act.  The statutory formula takes into account factors such as the number of children, the level of care provided and the income of each parent.  Another factor which may impact the rate of child support, which is relevant in this case, is the existence of a relevant dependent child.

2. A relevant dependent child is defined in section 5 of the Act as follows:

   relevant dependent child, in relation to a parent, means a child or step-child of the parent, but only if:

   (a) the parent has at least shared care of the child or step-child during the relevant care period; and

   (b) either:

   (i) the child or step-child is under 18; or

   (ii) if the child or step-child is not under 18—a child support terminating event has not happened under subsection 151D(1) in relation to the child; and

   (c) the child or step-child is not a member of a couple; and

   (d) in the case of a step-child:

   (i) an order is in force under section 66M of the Family Law Act 1975 in relation to the parent and the step-child; or

   (ii) the parent has the duty, under section 124 of the Family Court Act 1997 of Western Australia, of maintaining the step-child; and

   (e) in the case of a child—the parent is not assessed in respect of the costs of the child (except for the purposes of step 4 of the method statement in section 46).

3. The tribunal makes the following findings:

   ·     The child [Child 1]’s birth was registered on 3 May 2017. No father was listed on the birth certificate;

   ·     On 28 September 2020 the father advised Child Support that he had a relevant dependent child; and

   ·     On 30 November 2020 the child’s birth certificate was amended, with her family name changed to Dawber (from [Name 1], her mother’s family name) and Mr Dawber was listed as her father. 

4. The mother has brought this application on the basis that the father does not have a relevant dependent child in his care. She asserts that the father is not the biological father of [Child 1], as he partnered with [Child 1]’s mother when she was already pregnant. She was adamant that she and the father were still in a relationship when the child was conceived, intimating that this precluded him being the father. She did stress however, for all intents and purposes he cares for the child as her father, and the children from their relationships are encouraged to consider [Child 1] as their sibling.

5. The father explained that he has lived with [Child 1]’s mother for many years and with [Child 1] since birth. He initially stated that he was [Child 1]’s father. When asked if he was her biological father, he stated that he did not know. When asked if had commenced a sexual relationship with [Child 1]’s mother before she was pregnant he replied “I can’t fully state that”. The tribunal found that the father lacked candour and formed the view that he was being evasive. The tribunal asked if he had amended the child’s birth certificate to list him as the father after having his paternity confirmed. The father replied that this was not the reasoning behind the decision to amend the birth certificate; it only came about because [Child 1]’s mother had decided to permanently reside in Tasmania. He does not dispute that he does not have a duty, nor is there an order in force, under the Family Law Act 1975.

6. In support of her contention that the father is not the biological father of [Child 1], the mother provided a text message between her current partner ([Mr A]) and [Alias 1], dated 8 September 2016. She states that her current partner had had a sexual relationship with [Child 1]’s mother prior to her pregnancy, and so had contacted her to enquire about the child’s paternity:

   [Alias 1]

   Just said the low how she say [expletive] with out a the information  and [Mr B] is the father  not that he wont anything  to do with it (sic)

   ME

   Does he know?

   [Alias 1]

   Yes he know

7. The father confirmed that [Alias 1] was his partner’s account. He stated that he had no knowledge that [Child 1]’s mother believed that [Mr B] was her biological father. When asked again if believed he was the child’s biological father, after the contents of the text message were now raised with him, the father replied “I would have to say no… But I am not 100% certain”. 

8. The definition of a parent at section 5 of the Act is of no assistance in this matter. It simply states that a parent includes an adoptive parent or when used in relation to a child born after an artificial conception procedure or surrogacy arrangements. None of these circumstances are relevant in this matter.

9. Subsection 29(2) of the Act outlines the circumstances where the Registrar is to be satisfied that a person is a parent of a child. This includes at paragraph 29(2)(b) of the Act when a person’s name is entered into the register of births. This would suggest that the birth certificate in evidence is sufficient to indicate that [Child 1] is a child of the father. However, the tribunal is not satisfied that subsection 29(2) of the Act has a general application, as a stand-alone provision of the Act. Instead the tribunal is of the view that this provision must be read in conjunction with subsection 29(1) of the Act, which is limited to determining applications for administrative assessments under sections 24, 25 and 25A of the Act. This is distinct from the registration of a relevant dependent under an administrative assessment. 

10. On balance the tribunal is not sufficiently satisfied that [Child 1] is a child of the father, notwithstanding that her birth certificate was recently amended to list him as her father. The tribunal placed significant weight on the text message from the father’s partner stating that a third person was the child’s father, the contents of which the father did not object to.

11. As the tribunal is not satisfied that [Child 1] is the relevant dependent child of the father his application to have a relevant dependent child taken into account for the purposes of the administrative assessment must be refused. 

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that Mr Dawber’s 28 September 2020 application to have the child support assessment amended on the basis of a relevant dependent child is refused.