Alejandro and Alejandro (Child support)

[2020] AATA 4298

Alejandro and Alejandro (Child support) [2020] AATA 4298 (14 July 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC019179

APPLICANT:  Ms Alejandro

OTHER PARTIES:  Child Support Registrar

Mr Alejandro

TRIBUNAL:Member J D’Arcy

DECISION DATE:  14 July 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – child support agreement – date from which child support agreement should have been accepted – 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. Ms Alejandro is seeking a review of the decision to register a binding child support agreement on 14 November 2018.

2. Ms Alejandro and Mr Alejandro are the parents of [Child 1] born in May 2005 and [Child 2] born in July 2008. A child support assessment has been in place since 3 July 2010.

3. On 26 February 2017 Ms Alejandro provided the Department of Human Services – Child Support (Child Support), now Services Australia, with a copy of a binding child support agreement. The agreement was undated and did not include a certificate from Mr Alejandro’s lawyer. The certificate from Ms Alejandro’s lawyer was dated 9 January 2017.

4. On 8 March 2017 Child Support advised Ms Alejandro that the agreement had not been dated and a copy of Mr Alejandro’s lawyer’s certificate had not been received. On 28 March 2017 Child Support advised Ms Alejandro by telephone that the agreement could not be accepted because of the lack of the lawyer’s certificate. On the same date Child Support sent her the following letter:

   As discussed, we cannot accept the agreement in its current form as we have not received the Legal Certificate advising that Mr Alejandro has received independent legal advice.

   Could you please resend your whole agreement including this missing document along with an application for acceptance and we can start the agreement from the new received date.

   Or, if you are wanting to use an earlier date to start the agreement you will need to redo your agreement by having the agreement dated and specify a start date for the Agreement. This will need to be rcvd (sic) within 28 days of the new agreement made on date (sic).

5. On 14 November 2018 Mr Alejandro provided Child Support with a copy of the binding child support agreement and the missing lawyer’s certificate dated 23 December 2016. On 8 January 2019 Child Support advised both parties that the agreement had been accepted and that the first payment for the period would be registered from 14 November 2018.

6. Ms Alejandro objected to the decision to accept the agreement from 14 November 2018. The objection was disallowed and on 2 June 2020 she lodged an application for review with the Administrative Appeals Tribunal.

7. Child Support supplied the parties and the tribunal with the subsection 37(1) of the Administrative Appeals Tribunal Act 1975 statement and documents (246 pages). Ms Alejandro provided additional information marked A1 to A16. Mr Alejandro stated that he had not read the additional material because he was not aware that it had been emailed to him on 2 July 2020. He agreed to proceed with the hearing.

ISSUES

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

2. There are a number of issues in dispute by the parties, which were not before the tribunal. The only issue for determination was whether the binding child support agreement was correctly registered on 14 November 2018.

CONSIDERATION

1. Section 34B of the Assessment Act determines the commencement of the child support period when child support is already payable and a new agreement affects the rate of child support payable. Paragraph 34B(2)(d) specifies that if the application for the acceptance of the agreement was not made within 28 days of the agreement being signed then the child support period commences on the day on which the application was made to the Registrar for acceptance of the agreement.

2. Section 80C of the Assessment Act covers the requirements of a binding child support agreement as follows:

   Making binding child support agreements

   (1)  An agreement is a binding child support agreementif:

   (a)  the agreement is binding on the parties to the agreement in accordance with subsection (2); and

   (b)  the agreement complies with subsection 81(2).

   (2)  For the purposes of subsection (1), an agreement is binding on the parties to the agreement if, and only if:

   (a)  the agreement is in writing; and

   (b)  the agreement is signed by the parties to the agreement; and

   (c)  the agreement contains, in relation to each party to the agreement, a statement to the effect that the party to whom the statement relates has been provided, before the agreement was signed by him or her, as certified in an annexure to the agreement, with independent legal advice from a legal practitioner as to the following matters:

   (i)  the effect of the agreement on the rights of that party;

   (ii)  the advantages and disadvantages, at the time that the advice was provided, to the party of making the agreement; and

   (d)  the annexure to the agreement contains a certificate signed by the person providing the independent legal advice stating that the advice was provided; and

   (e)  the agreement has not been terminated under section 80D; and

   (f)  after the agreement is signed, either the original agreement or a copy of the agreement is given to each party.

3. Ms Alejandro made the following submissions. There is no dispute between the parties that there was a valid binding child support agreement from the date of commencement in 2017 evidenced by payments made by Mr Alejandro in accordance with the agreement, which indicates an intention to be bound by the agreement. Mr Alejandro’s failure to provide the lawyer’s certificate was out of her control. Late registration should not have affected her child support entitlements under the agreement; and she did not understand that failure to provide the certificate in a timely manner would have significant adverse financial implications for her.

4. The tribunal finds that there was a child support assessment in place when Ms Alejandro applied to have a binding child support agreement registered on 26 February 2017. By letter dated 28 March 2017 Child Support advised that it had refused to register the agreement because Mr Alejandro’s lawyer’s certificate had not been provided. Mr Alejandro provided that certificate on 14 November 2018.

5. According to section 80C of the Assessment Act an agreement is only binding on the parties once all of the requirements in subsection 80C(2) have been met, including the provision of the certificates from the parties’ lawyers. Consequently given that all of the requirements of the binding child support agreement were not met until 14 November 2018 then the agreement was not binding prior to that date and so registration could not be accepted before 14 November 2018 under section 34B of the Assessment Act.

6. The decision to register the binding child support agreement from 14 November 2018 was therefore correct.

DECISION

The decision under review is affirmed.