Ascencio and Jefferson (Child support)

Ascencio and Jefferson (Child support) [2020] AATA 6164 (28 August 2020)

Date: 28 August 2020

DIVISION:Social Services & Child Support Division
REVIEW NUMBERS:  2020/BC019205, 2020/BC019233 & 2020/BC019234
APPLICANT:  Mr Ascencio
OTHER PARTIES:  Ms Jefferson
Child Support Registrar

TRIBUNAL:Member P Jensen
DATE OF DECISIONS: 28 August 2020
DECISIONS:

The decision to accept Ms Jefferson’s application dated 28 August 2014 to register a child support case is set aside and, in substitution, the Tribunal decides to refuse Ms Jefferson’s application dated 28 August 2014.

The decision to record Mr Ascencio as providing 0% care and Ms Jefferson as providing 100% care to [Child 1] with effect from 28 August 2014 is set aside and, in substitution, the Tribunal decides to not make a care determination.

The decision to collect child support arrears of $311.70 for the period from 22 October 2019 to 21 January 2020 is set aside and, in substitution, the Tribunal decides that no child support arrears were owed in respect of that period.

CATCHWORDS

CHILD SUPPORT – acceptance of application for administrative assessment –whether application should have been accepted – parties living together in genuine domestic relationship at the time of application - 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 DECISIONS

Mr Ascencio and Ms Jefferson are the parents of [Child 1], who is known as [name]. He was born in February 2012. The parents married in March 2013. On 28 August 2014, Ms Jefferson applied to register a child support case with what is commonly called the Child Support Agency, or CSA. On 1 October 2014 the CSA decided to register a child support case, with effect from 28 August 2014. It also decided to record Mr Ascencio as providing 0% care and Ms Jefferson as providing 100% care to [Child 1], with effect from 28 August 2014.
The payment of child support can be a private matter between the parents or it can be registered for collection by the CSA. Initially the payment of child support was a private matter between the parents. On 22 January 2020, Ms Jefferson applied to have the CSA collect the ongoing child support payable. She also applied to have the CSA collect the outstanding arrears in respect of the preceding three months. She claimed that Mr Ascencio had not paid any child support in respect of that period. The CSA decided to collect arrears of $1,983.52.
On 29 January 2020, Mr Ascencio objected to the care decision and the arrears decision.
On 23 February 2020, Mr Ascencio objected to the registration decision, and he applied for an extension of time in which to object. The CSA granted his extension of time application.
An objections officer disallowed Mr Ascencio’s objections to the registration decision and the care decision. An objections officer allowed Mr Ascencio’s objection to the arrears decision, and varied the quantum of the arrears to $311.70. Mr Ascencio promptly applied to the Tribunal for review of those decisions. The matters were listed for hearings on 31 July 2020. The parents participated in the hearings by conference phone. Ms Jefferson claimed she had been unaware that Mr Ascencio had applied for review of the decisions and she had been unaware of the hearings until I phoned her on the day of the hearings. There were reasons to doubt Ms Jefferson’s claims but I ultimately granted her applications to have the matters adjourned to a later date. The matters were relisted for hearings on 28 August 2020. Shortly before the close of business on 27 August 2020 the Tribunal registry received an email which enclosed a letter from [a named] solicitor, of [a named firm]. She stated that her firm acted for Ms Jefferson, and they had reviewed the hearing papers, and “Ms Jefferson does not wish to be heard by the Tribunal in relation to the review that is sought by Mr Ascencio and that she does not intend on participating in the Tribunal hearing on Friday 28 August 2020.” The hearings proceeded on 28 August 2020 in Ms Jefferson’s absence. Mr Ascencio participated in the hearings by conference phone.
I will deal firstly with the decision to accept Ms Jefferson’s application to register a child support case. Obviously if that decision were to be set aside, the care decision and the arrears decision would also have to be set aside because there would be no child support case in respect of which to make those two decisions.
The requirements for registering a child support case are contained in sections 23 to 28 of the Child Support (Assessment) Act 1989 (“the Act”). One of the requirements is that “the applicant is not living with the other parent as his or her partner on a genuine domestic basis (whether or not legally married to the other parent)”: paragraph 25(b) of the Act.
The case has an unusual history. On 28 August 2014 the CSA spoke to Ms Jefferson and she elected to collect the child support privately. The CSA noted:
[Mr Ascencio] will be assisting [Ms Jefferson] with food, essential items, bills and medical costs which she accepts as child support.
On 1 and 2 September 2014 the CSA phoned Mr Ascencio and left messages asking him to phone it. It also wrote to him and asked him to phone it. On 5 September 2014 it phoned him again and noted:
-call answered by … [Ms Jefferson], she advised that [Mr Ascencio] is not there at the moment
-have requested [Ms Jefferson] to pass on message to [Mr Ascencio] to phone [the Department of Human Services]
On 17 September 2014 the CSA noted:
[Ms Jefferson] called to advise that she did receive a payment from Centrelink 2013/14 and was supported by her ex partner [Mr Ascencio]
…
She then asked about case with [Mr Ascencio] which is pended. She advised that there is some conflict between them at the moment and she tried to get an exemption but this was not successful. …
The reference to “an exemption” suggests that Ms Jefferson was granted family tax benefit and she sought an exemption from the usual requirement to lodge a claim for child support in order to be paid more than the base rate of family tax benefit.
As part of the current proceedings, Mr Ascencio provided a copy of a psychological report dated 15 November 2017. The psychologist noted that “[[Child 1]] resides at home with his mother, father, and brother.”
On 3 September 2019, Ms Jefferson sent an email to [a named] accountant. The email stated, in part:
[Mr Ascencio] made me extremely uncomfortable when he disclosed the single parent payments. It is something that has caused me tremendous shame and anxiety over the years. After we married in 2013, [Mr Ascencio] informed me that I was not to spend money generated by [a named property] to buy my children and I clothing, medical appointments, fuel, food and sundries, even though we worked alongside him, … [Mr Ascencio] had me open an account which he transferred a small grocery allowance into — it would be under Personal Drawings Personal: Groceries. As it often didn’t cover the weekly groceries, the small nest egg I had saved evaporated. I was destitute and working in town was unviable due to road conditions and distance for a daily commute, so I was forced to claim Single parent payments to be able to survive as a responsible parent. … I don’t know how to rectify the situation. Is there any possible solution?
In relation to that email, Mr Ascencio explained:
After learning of [Ms Jefferson]’s 2014 claim to the CSA, I became concerned as I had been claiming Dependant Spouse Rebate and two dependent children on my Income Tax Returns. I raised this issue during a meeting with my accountant … on 28 August 2019. [Ms Jefferson] attended the meeting by telephone. As the bulk of the content of these emails is untrue, I would understand if the Tribunal views them with prejudice.
On the account of events given by Ms Jefferson to the CSA, she was single and in need of an income support payment. On that account of events, it is not immediately apparent why her receipt of parenting payment at the single rate would cause her “tremendous shame and anxiety over the years.” On Mr Ascencio’s account of events, she was not single and she was consequently not entitled to the parenting payment she was receiving. Ms Jefferson’s stated shame and anxiety is consistent with Mr Ascencio’s account of events.
On 2 October 2019, Ms Jefferson stated in an affidavit:
[Mr Ascencio] and I started a relationship in mid-2009. We were married [in] March 2013. During our relationship we lived at [the named property] … We separated on 5 September 2019 …
On 13 January 2020, Ms Jefferson stated in an affidavit (which was heavily redacted, presumably by Mr Ascencio):
In response to paragraph 3, I say as follows: - … I deny that [Mr Ascencio] and I separated in September / October 2018 and that we were separated and living under the same roof until approximately 5 September 2019. [Mr Ascencio] and I separated on 5 September 2019 …
On 26 February 2020 the CSA contacted Mr Ascencio and noted (with minor typographical errors in the original):
the application was made without my knowledge, I received no email or contact from CSA seeking verifications of circumstances. I have been advised by CSA recently that an attempts were made to contact me on [redacted]. As I am aware from house working most days I say that [Ms Jefferson] either took the calls and advised I wasn’t present or accessed any messages were deleted. As I am usually away working throughout the day [Ms Jefferson] variably collected our mail and I say any correspondence would have been destroyed by her.
On 16 April 2020 the CSA contacted Ms Jefferson and noted:
[Ms Jefferson] advised that she was separated from [Mr Ascencio] from June 2014.
…
[Ms Jefferson] advises her living arrangement was random and sporadic from June 2014.
She moved between friends and relative [sic] houses. [Ms Jefferson] advises that she would return to the property to help with muster or fencing as required however never as partner of [Mr Ascencio’s].
…
I suggested third party statements from people aware of her situation from 2014.
Asked had she updated her address while moving between residences - no.
…
I suggested third party statements, household bills, text messages, bank statements. ([Ms Jefferson] suggest bank statements will show withdrawals made from places other than [sic])
If Ms Jefferson had in fact moved between friends’ and relatives’ houses, it would presumably be relatively easy for her to obtain statements from at least some of those people confirming her account of events. She has not provided any such documentation.
At the hearing I asked Mr Ascencio whether, as at August 2014, he and Ms Jefferson were living together on a genuine domestic basis. He said they were. He said they were living in the same house and sleeping in the same bed. He said that, so far as he had been aware at the time, Ms Jefferson had not been earning any money. He stated in his written submissions that he “transferred $300 / fortnight to [Ms Jefferson]’s bank account for grocery / household expenses”. He said he would often wake up early and cook himself and the children breakfast. He said Ms Jefferson normally cooked dinner and the family ate dinner together. He said he is not “a party person” but he and Ms Jefferson occasionally attended family events and they do so as a couple.
I did not consider it necessary to question Mr Ascencio at length on the issue of whether, as at August 2014, he and Ms Jefferson were living together on a genuine domestic basis. He gave sworn evidence that they were, and he provided evidence in support of that conclusion. The evidence referred to above casts doubt on Ms Jefferson’s assertion to the contrary, and she elected to not participate in the hearings and be questioned on the issue. On balance, I accept Mr Ascencio’s evidence on the issue. The requirements for registering a child support case were not satisfied. The preferrable decision at first instance was to refuse Ms Jefferson’s application to register a child support case with effect from 28 August 2014, and that remains the preferable decision on review. The registration decision will be set aside. It follows that the care decision and the arrears decision will also be set aside.

DECISIONS:

[2020] AATA 6164

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Statutory Construction

Remedies

Procedural Fairness

Appeal

Standing