Smethurst and Joncey (Child support)

[2022] AATA 4039

Smethurst and Joncey (Child support) [2022] AATA 4039 (11 August 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/BC023947

APPLICANT:  Mr Smethurst

OTHER PARTIES:  Child Support Registrar

Ms Joncey

TRIBUNAL:Member D Tucker

DECISION DATE:  11 August 2022

DIRECTION TO ALTER DECISION OR REASONS FOR DECISION:

Pursuant to section 43AA of the Administrative Appeals Tribunal Act 1975, the following alteration is made to the decision and the written statement of reasons for the decision:

The fourth line of the front page of the decision is altered to read:

OTHER PARTIES:    Child Support Registrar

AND

The fifth line of the front page of the decision (“Chief Executive Centrelink”) is to be omitted.

Member D Tucker
4 November 2022

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2022/BC023947

APPLICANT:  Mr Smethurst

OTHER PARTIES:  Secretary

Chief Executive Centrelink

Ms Joncey 

TRIBUNAL:  Member D Tucker

DECISION DATE:  12 August 2022

DECISION:

The decision under review is affirmed. (This means the application was not successful.)

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – decision under review affirmed

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. Mr Smethurst and Ms Joncey are the separated parents of [Child 1], born [in] May 2004.

2. On 13 December 2021, Ms Joncey told Services Australia – the Child Support Agency (the CSA) there had been a change in care, such that she had 100% of care of [Child 1] from 22 November 2021.

3. On 2 March 2022, the CSA decided to reflect [Child 1]’s care as 100% to Ms Joncey from 22 November 2021.

4. The CSA subsequently decided that, from 4 February 2022, neither Ms Joncey or Mr Smethurst had any care, as [Child 1] began living independently from that date.

5. On 11 March 2022, Mr Smethurst lodged an objection to the CSA’s decision of 2 March 2022, to reflect 100% care to Ms Smethurst from 22 November 2021.

6. Mr Smethurst agreed that he had 0% care of [Child 1] from that date, but disputed Ms Joncey’s claim that she had 100% care.

7. On 13 May 2022, after considering evidence from Mr Smethurst and Ms Joncey, the CSA disallowed Mr Smethurst’s objection.

8. On 23 May 2022, Mr Smethurst applied to this Tribunal for further review. He and Ms Joncey gave affirmed evidence via a telephone hearing on 11 August 2022. The Tribunal also considered relevant documents provided by the CSA and oral and written submissions from both parties.

LEGISLATION

1. The legislation relevant to this review is contained in:

   ·   the Child Support (Assessment) Act 1989 (the Act); and

   ·   the Child Support (Registration and Collection) Act 1988.

ISSUES

1. There is no dispute that Mr Smethurst had no care of [Child 1] from 21 November 2021. The question is whether the CSA’s decision to reflect 100% care to Ms Joncey was correct.

CONSIDERATION

1. Mr Smethurst told the Tribunal that after 22 November 2021, he received phone calls on a weekly basis from local friends and acquaintances in [Town 1] who said they had seen [Child 1] around town. In January 2022, someone told Mr Smethurst they had seen [Child 1] in [Town 2].

2. Based on these reports, Mr Smethurst did not believe that Ms Joncey had 100% care of [Child 1] from 22 November 2021 as she claimed, given that she resides in Brisbane, which is [number] hours’ drive from [Town 1].

3. Mr Smethurst also provided a written statement from [Mr A], who states that he was told by [Child 1]’s stepsister that [Child 1] had only lived with Ms Joncey for three weeks.

4. Mr Smethurst also queried whether the CSA had correctly assessed Ms Joncey’s income for child support purposes. The Tribunal explained, and Mr Smethurst accepted, that this was beyond the scope of the current review.

5. In response, Ms Joncey told the Tribunal that:

   ·   [Child 1] initiated contact with her during 2021 and they corresponded via text messages. On 25 June 2021, [Child 1] texted her, saying that he was upset about conflict between himself and Mr Smethurst.

   ·   On 29 September 2021, [Child 1] came to Brisbane and stayed overnight at her house with two of his friends.

   ·   On 20 November 2021, at her invitation, [Child 1] drove to her home in Brisbane in a car gifted to him by his father, with most of his possessions. The plan was for him to stay with her temporarily, as the terms of her residential lease did not permit him to stay permanently.

   ·   Over the next few months, [Child 1] returned to [Town 1], which is a [number]-hour drive from Brisbane, on at least three occasions. On one occasion he collected the rest of his belongings from his father’s home, on another he returned the vehicle he was driving because it was registered to his father, and on another he attended a New Year’s Eve party. On each visit, he stayed for several days with friends or relatives.

   ·   Ms Smethurst provided the CSA with documentary evidence that after 22 November 2021 [Child 1] had updated his driver’s licence to his mother’s address, enrolled in a University course offered in Brisbane, registered for youth allowance using his mother’s address, and taken up casual employment in Brisbane.

   ·   On 4 February 2022, Ms Smethurst facilitated [Child 1]’s relocation to live with his maternal uncle in a larger residence in Brisbane. From that point, Ms Smethurst regarded [Child 1] as living independently, as he was 17 years old, had employment and was meeting his own living expenses.

6. According to the CSA records, on 8 February 2022, Ms Smethurst gave notice that [Child 1] had left her care on 4 February 2022. Consequently, the CSA determined that from 4 February 2022, Mr Smethurst and Ms Joncey both had 0% care.

7. The Tribunal asked Mr Smethurst whether he thought that the evidence offered by Ms Joncey about [Child 1]’s return visits to [Town 1] after 22 November 2021 might account for the reports he had received from local people. Mr Smethurst did not accept this proposition, contending that the reported sightings of [Child 1] in [Town 1] during December 2021 and January 2022 were so numerous that he could not have been living with Ms Joncey.

8. The Tribunal notes that there is no inconsistency between Ms Joncey having 100% care and [Child 1] staying elsewhere (such as [Town 1]) for several nights at a time. The relevant question is whether Ms Joncey had overall responsibility for [Child 1] and his living expenses from 22 November 2021.

9. After careful consideration, the Tribunal finds that the weight of the evidence favours the conclusion that Ms Joncey had 100% care of [Child 1] from 22 November 2021 because:

   ·   Ms Joncey’ account of the circumstances surrounding [Child 1]’s relocation is plausible, particularly as it was corroborated by text messages and several pieces of documentary evidence. She also provided third-party statements from people who directly observed [Child 1] apparently at her home on more than one occasion.

   ·   In contrast, Mr Smethurst’s evidence relies on observations by unnamed persons that, if accepted, would only substantiate that [Child 1] had visited [Town 1] after 21 November 2021, consistent with Ms Joncey’ evidence. Similarly, the third-party statement Mr Smethurst provided relied upon hearsay, rather than direct observation.

10. Based on these findings, the Tribunal is satisfied that Ms Smethurst had 100% care of [Child 1] from 22 November 2021, as determined by the CSA on 2 March 2022. The decision to disallow Mr Smethurst’s objection to this decision was therefore correct.

DECISION

The decision under review is affirmed. (This means the application was not successful.)