Bevan and Bevan (Child support)

[2024] ARTA 430

Bevan and Bevan (Child support) [2024] ARTA 430 (11 December 2024)

Applicant:  Mr Bevan

Respondent:  Child Support Registrar    

Other Parties:       Ms Bevan

Tribunal Number:   2024/MC028490 

Tribunal:  Member I Sheck

Place:Melbourne

Date:11 December 2024

Decision:The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the direction that a binding child support agreement dated 8 March 2023 and application for acceptance of that agreement was lodged with Child Support on 9 March 2023.

CATCHWORDS 

CHILD SUPPORT – a binding child support agreement – requested for the binding child support agreement be accepted for registration – decision under review set aside

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

BACKGROUND

1.Mr Bevan and Ms Bevan are the parents of [Child 1], born in 2004, and [Child 2], born in 2007.  A case was registered with Services Australia – Child Support (Child Support) for the assessment of child support and collection of the liability from 8 August 2016.

2.On 8 March 2023 Mr Bevan and Ms Bevan entered into a binding child support agreement pursuant to section 80C of the Child Support (Assessment) Act 1989 (the Act).  Mr Bevan’s representative, [A] of [a firm], emailed a copy of the agreement and a covering letter dated 8 March 2023 to Child Support.  This was received by Child Support on 9 March 2023.

3.Further copies of the agreement and covering letter were sent by [Ms A] on numerous occasions.  [Ms A] also contacted Child Support by telephone querying the progress of the registration of the agreement.  On 8 June 2023 Mr Bevan signed a Child Support form CS1666, “Child Support Agreement”, which was lodged with Child Support on 9 June 2023.  The parties were notified by letter dated 27 June 2023 that their binding child support agreement had been accepted.

4.During the period 18 to 22 March 2024 a number of tax refunds otherwise payable to Mr Bevan were credited towards his child support liability.  On 25 March 2024 [Ms A] contacted Child Support on Mr Bevan’s behalf to query this, noting that clause 10 of the binding child support agreement stated: “For the period of 1 May 2016 to the date of this agreement, the total amount of child support be set equal to the monies already paid by Mr Bevan to Ms Bevan, with the effect that no arrears remain payable from Mr Bevan to Ms Bevan.”  A Child Support officer determined that as no application for acceptance of the agreement had been received within 28 days of the agreement having been made, it had not been registered until June 2023 and clause 10 of the agreement had not been applied.

5.On 16 May 2024 Mr Bevan lodged an objection to the decision of Child Support to register the binding child support agreement with effect from 9 June 2023 and not an earlier date.  On 12 July 2024 a further amount of $4,000 was garnisheed from Mr Bevan’s bank account and applied to the child support liability.  On 3 August 2024 an objections officer of Child Support affirmed the original decision on the basis that application for acceptance of the binding child support agreement had not been received from Mr Bevan until his signed form CS1666 had been lodged on 9 June 2023.

6.By application received on 28 August 2024, Mr Bevan asked the Administrative Appeals Tribunal (the AAT) to review the objections officer’s decision.  From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

7.On 5 December 2024, the Tribunal conducted a hearing at which Mr Bevan gave evidence in person and Ms Bevan by MS Teams audio.  Mr Bevan was represented by [Ms A].  The Tribunal had before it the relevant documents from Child Support (pages 1 to 310), which had been copied to the parties.

CONSIDERATION

8.The law relevant to this matter is contained in the Act. Part 6 of the Act contains the provisions relating to binding child support agreements. It is common ground and the Tribunal finds that Mr Bevan and Ms Bevan signed an agreement on 8 March 2023 and that agreement complied with the terms of section 80C of the Act, such that it is a binding child support agreement. Section 92 of the Act provides that if Child Support is satisfied that an application made to the Registrar for acceptance of an agreement has been properly made, the Registrar must accept the agreement.  Section 94 of the Act then provides that after the agreement is accepted, Child Support must immediately take such further action (if any) as is necessary to give effect to the agreement.

9.Mr Bevan’s authorised representative, his solicitor [Ms A], lodged the binding child support agreement with Child Support on 9 March 2023, and again on 16 March 2023, 4 April 2023, 19 April 2023, 8 May 2023 and 30 May 2023.  Child Support agrees that this occurred.  In this case, the basis of Child Support’s decision appears to be that a valid application for acceptance of the binding child support agreement can only be made by the completion and signing of a form CS1666 by Mr Bevan himself and he did not sign and lodge such a form until 9 June 2023. 

10.Turning first to whether [Ms A] was authorised to lodge documents on behalf of Mr Bevan, the Tribunal notes the record of a conversation between [Ms A] and a Child Support officer on 5 June 2023, in which the officer informs [Ms A] that they could not give her any information as she was not listed as an authorised representative.[1]  Further to this, on 9 April 2024 a Child Support officer has stated that “An application for acceptance of an agreement or any other type of CS "application" can not be made by anyone else except by a person with legal authority such as a person with Power of Attorney”.[2]  On this point, [Ms A] referred the Tribunal to section 150 of the Act, as well as section 6.3.6 of the Child Support Guide, the latter of which states in part:

Services Australia will communicate with a representative who has been authorised to act on behalf of a child support parent or carer and is able to provide sufficient information to identify themselves. ...Services Australia will also communicate with a person's representative who is legally entitled to act on their behalf.

[1] Hearing papers, page 181

[2] Hearing papers, page 238

11.The Tribunal notes that a Child Support officer attempted to call [Ms A] on 13 December 2022, and in the file note she is described as Mr Bevan’s representative.[3]  [Ms A] was also the likely recipient of a further contact (the names have been redacted) on 16 February 2023, regarding the binding child support agreement which had yet to be finalised.[4]  The Tribunal finds that [Ms A] was at all times legally empowered to act on Mr Bevan’s behalf and was authorised to lodge documents on his behalf, for action by Child Support.

[3] Hearing papers, page 74

[4] Hearing papers, page 75

12.In addition to the binding child support agreement, [Ms A] sent on each occasion a covering letter, which stated in part:

We enclose Binding Child Support Agreement signed by Mr Bevan and Ms Bevan and dated 8 March 2023.

Please acknowledge receipt of the Binding Child Support Agreement signed by the parties and confirm once it has been successfully registered with Services Australia.

13.As noted above, Child Support asserts that a binding child support agreement must be accompanied by an application for that agreement to be accepted before it can actually be accepted.  This is correct and in accordance with section 88 of the Act, which provides that an application for acceptance by Child Support of a binding child support agreement is properly made if it complies with section 89 of the Act.  Section 89 then provides that an application for acceptance of a binding child support agreement must be made in a specified manner.  The Child Support Guide notes that an application for acceptance may be made orally or in writing, including by the use of an approved form.[5] 

[5] See section 6.2.1 of the Child Support Guide

14.The Tribunal asked [Ms A] whether she was familiar with the lodgement of binding child support agreements with Child Support and she responded that she was; she had lodged many.  The covering letter that she had attached to the agreement was essentially a “standard letter” which was always attached to the agreement itself so as to facilitate acceptance of the agreement and consequent registration.  In answer to the Tribunal’s question, [Ms A] said that she had never personally encountered this issue before, where the covering letter was not considered to be an application for the agreement to be accepted.

15.Section 89 of the Act allows an application for acceptance of a binding child support agreement to be in writing.  It seems entirely evident to the Tribunal that in requesting that Child Support acknowledge receipt of the agreement and confirm that it had been registered, [Ms A] was asking for it to be accepted by Child Support: it could not be registered without first being accepted for registration.  There is nothing before the Tribunal to conclude that the Act requires strict compliance with the words “application for acceptance” in order for section 89 to be met.  The Tribunal therefore concludes that [Ms A] lodged the binding child support agreement on 9 March 2023, together with an application for acceptance of the agreement.  Child Support must consequently assess the child support payable by Mr Bevan in accordance with the binding child support agreement from 9 March 2023.

DECISION

The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the direction that a binding child support agreement dated 8 March 2023 and application for acceptance of that agreement was lodged with Child Support on 9 March 2023.

Date(s) of hearing:	Thursday, 5 December 2024
Representative for the Applicant:	Ms [A] of [a firm]