Austin and Powell (Child support)

[2024] AATA 788

Austin and Powell (Child support) [2024] AATA 788 (4 March 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/BC027025

APPLICANT:  Mr Austin

OTHER PARTIES:  Child Support Registrar

Ms Powell

TRIBUNAL:Member S Letch

DECISION DATE:  4 March 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – application for child support assessment - whether entitled to make application at date of application – eligible at time of application - 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

1. Mr Austin and Ms Powell are the parents of [Child 1] and [Child 2]. This matter concerns a decision by Child Support to accept Ms Powell’s application for a child support assessment made on 28 January 2022. Mr Austin argues that he and Ms Powell had not separated until December 2022. Accordingly, he says the application made in January 2022 ought not have been accepted.

2. It is convenient by way of background to set out some extracts from the objections officer’s decision dated 25 October 2023:

   DECISION UNDER REVIEW

   The decision made on 22 February 2022 to accept [Ms Powell]'s application for a child support assessment between [Ms Powell] and [Mr Austin] for their children [Child 1] and [Child 2] from 28 January 2022.

   …

   In this case, [Ms Powell] applied for a child support assessment on 28 January 2022, stating that she and [Mr Austin] separated on 26 October 2021. [Ms Powell] provided contact details for herself and [Mr Austin], which were the same address, implying that [Ms Powell] was claiming they were separated under the same roof. It is noted this was never discussed with [Ms Powell] at the time.

   In the brief contact with [Mr Austin] on 1 February 2022, he confirmed his contact details and he was informed [Ms Powell] had applied for a child support assessment. [Mr Austin] did not raise any issue with the application, only stating he was not able to speak with us at that time and agreeing to call back. In the absence of any further contact from [Mr Austin], we accepted the application, which was elected to be collected privately.

   What must be determined in this case was whether [Ms Powell] and [Mr Austin] were separated as of 28 January 2022. Whilst there was a dispute about the events later in the year, especially from September 2022 onwards, this is not especially relevant when determining if they were separated as of 28 January 2022. [Ms Powell] had not identified that there were any domestic violence issues at the time and on objection, has stated [Mr Austin] was present when she spoke with us about the application and she was aware he had spoken with us. In light of the brief contact with [Mr Austin] where he was made aware of the child support application, it would be reasonable to expect [Mr Austin] to contact us if he had any concerns about the validity of the application, if he believed they were not separated at that point. In support of them being separated early in 2022 was the letter [Mr Austin] provided, showing [Ms Powell] had made an enquiry with Legal Aid regarding care arrangements in April 2022 or earlier, which it may be presumed was on the basis they were separated at the time.

   There is a possibility [Ms Powell] and [Mr Austin] reconciled at some point between 28 January 2022 and 5 December 2022, but this would need to be considered in a separate decision, based on evidence to support this.

   On balance, it is accepted [Ms Powell] and [Mr Austin] were separated on 28 January 2022 and a valid application for a child support assessment was made on that date. We have therefore made the decision to accept [Ms Powell]'s application for a child support assessment between [Ms Powell] and [Mr Austin] for their children [Child 1] and [Child 2] from 28 January 2022.

   The objection is disallowed.

3. Mr Austin and Ms Powell participated in the Tribunal’s hearing by conference telephone. Both gave sworn evidence.

4. Mr Austin told the Tribunal that Child Support have the “dates wrong”. They did not separate until December 2022. He denied being present during Ms Powell’s initial call to Child Support – he said he was “at work”. He conceded he received a call from Child Support in early 2022 but was “at work” and he “had no idea what it was about”. In January 2022, he was working and supporting the family. He was paying board to his parents. Ms Powell had a card to access his account, which she used to pay for groceries and other expenses. They were sleeping in the same bedroom and maintained a sexual relationship. His parents thought “they were still together”. Friends and other family thought they were together.

5. Ms Powell told the Tribunal that they are going through a “family matter” (parenting dispute) with a Court date in future. In April 2022, she approached Legal Aid for consent orders for care of the children. She was hoping to get an arrangement in place so she could leave. Her Legal Aid application was refused. In January 2022, she was not using Mr Austin’s account. She was using her own money – she was receiving parenting payment (single) and family tax benefit. She made her claim as a “single parent” with Centrelink in around November 2021. They accepted she was “separated under one roof”; she obtained verifying supporting statements attesting to the separation, which she also supplied to Child Support. Mr Austin “at the start” was providing support with nappies and other items in lieu of child support. However, that assistance was quickly withdrawn.

6. Ms Powell told the Tribunal that Mr Austin was “right beside her” when she made the initial call to Child Support. She said Mr Austin was happy to have a “private arrangement”. She said Mr Austin’s parents were aware that she and Mr Austin had separated under one roof. Ms Powell said police had been involved in domestic incidents – Ms Powell said she was “getting abused every single day” and that she was “not allowed to leave the house”. She said Mr Austin and his parents would physically prevent her from leaving the home. Eventually, she had the opportunity of “somewhere else to go” in December 2022. Ms Powell said she had suffered continuous “emotional and psychological abuse”.

7. Mr Austin told the Tribunal that he has a “DVO” against Ms Powell which says the separation occurred in December 2022. Mr Austin denied any suggestion of any abuse against Ms Powell.

Application of the law

1. A parent may apply for a child support assessment if, amongst other things, they are not living with the other parent as his or her partner on a genuine domestic basis: section 25 of the Child Support (Assessment) Act 1989 (the Act). A “member of a couple” is defined in section 5 of the Act as including a person who is legally married to another person and is not living separately and apart from the other person on a permanent or indefinite basis.

2. The relevant law is accurately summarised in simple terms in the Child Support Guide at 2.1.1:

Living together

A parent or non-parent carer may not apply for a child support assessment if they are living as the partner of the other parent, or a parent, of the child on a genuine domestic basis.

The factors to be considered (SS Guide 2.2.5.30) in establishing whether people are living together as partners on a genuine domestic basis are:

·          financial aspects of the relationship

·          nature of the household

·          social aspects of the relationship

·          presence or absence of a sexual relationship, and

·          nature of the commitment.

1. The Social Security Guide at 2.2.5.30 relevantly provides as follows:

   Each case must take into consideration a person’s particular situation, including but not limited to:

   ·          the impact of family and/or domestic violence

   ·          a person’s sexual orientation – particularly where it has not been disclosed to others

   ·          a person’s cultural background

   ·          a person’s ethnicity, or

   ·          a person’s religious beliefs.

   …

   Family and/or domestic violence

   The presence of family and/or domestic violence, may indicate that a person is not a member of a couple and needs to be considered when assessing each of the 5 factors. Evidence may be required to support the presence of the family and/or domestic violence.

   Family and domestic violence includes, but is not limited to physical, sexual, financial, emotional and psychological abuse. All types of family and domestic violence should be considered, together with the 5 factors.

   …

   Determining living separately & apart on a permanent or indefinite basis

   A person is considered living separately and apart on permanent or indefinite basis when they are no longer a member of a couple because the relationship has broken down and there is a level of physical and/or emotional estrangement, resulting in one or more parties having no intention to reconcile. An emotional estrangement can occur independently of whether the parties live in the same house or not (2.2.5.50).

   The decision maker must establish if a breakdown in the relationship has led to an estrangement between the 2 people and if the separation is on a temporary, indefinite or permanent basis.

2. Importantly, the guidelines correctly observe that an intention not to reconcile a relationship which has broken down can be formed by “one or more parties”. In other words, if, at the time she applied for a child support assessment, Ms Powell had formed the view to bring the relationship to an end, and a consideration of the five factors objectively supported a conclusion of the absence of a “member of a couple” relationship, the ultimate conclusion would be that she satisfied the requirement to make an application for a child support assessment on the basis that she and Mr Austin were no longer members of the same couple.

3. As a general observation, to the extent of inconsistency, I generally preferred Ms Powell’s recollection of events.

4. I accept Ms Powell had formed the clear intention to bring the relationship to an end by the time she made her application for a child support assessment in January 2022. I find Mr Austin was present during Ms Powell’s initial telephone call to Child Support. I accept he was contacted by Child Support; he was aware Ms Powell had made the application for the assessment. He gave no indication to Child Support that he disputed the application. Ms Powell approached Centrelink to make a claim for income support in around November 2021 on the basis that she was “separated under one roof”, a claim which Centrelink accepted. I observe that there are serious penalties for making false representations to Centrelink; I find here that Ms Powell truthfully reported to Centrelink that she was no longer a member of a couple with Mr Austin. I find that she was financially independent from Mr Austin upon commencement of her Centrelink income support payments, and that she met most, if not all, of the financial needs of the children. Consistent with her view that the relationship had come to an end, she approach Legal Aid in the hope of obtaining assistance to secure parenting orders. I accept Ms Powell’s evidence that she suffered an element of domestic abuse, and that at her earliest opportunity, she moved away from the former family residence in December 2022.

5. In terms of the five factors, I am satisfied that Ms Powell had become largely financially independent from Mr Austin in late 2021 by accessing Centrelink assistance. Ms Powell had completely severed any commitment to the relationship. There was a complete absence of any financial, social or physical commitment by the time of her application. I am comfortably satisfied that, in weighing the five factors, the relationship had completely broken down and that Ms Powell was living separately and apart from Mr Austin on a permanent basis.

6. Consequently, Ms Powell was entitled to make an application for a child support assessment on 28 January 2022. As this is the same conclusion as the objections officer, the decision under review will be affirmed.

DECISION

The decision under review is affirmed.