Bishop and Stanley (Child support)

Bishop and Stanley (Child support) [2023] AATA 4298 (16 November 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/SC026387
APPLICANT:  Mr Bishop
OTHER PARTIES:  Child Support Registrar
Ms Stanley

TRIBUNAL:Senior Member J Longo
DECISION DATE: 16 November 2023
DECISION:

The decision under review is set aside and the matter is sent back to the Child Support Registrar for reconsideration in accordance with the direction that a written application for acceptance of a binding child support agreement was made to the Registrar on 11 October 2018. The Registrar must then determine an application for an administrative assessment of child support from 11 October 2018.

CATCHWORDS

CHILD SUPPORT – child support agreement – whether a financial agreement meets the requirements of a binding child support agreement – decision under review set aside and sent back with directions

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

This review is about whether an application for assessment should be accepted, and if so, whether the binding child support agreement should be applied to the child support assessment from the date of the application for assessment or from another date.
Mr Bishop and Ms Stanley are the parents of [Child 1], [Child 2] and [Child 3]. On 11 January 2023 Ms Stanley made an application for a child support assessment to Services Australia – Child Support (Child Support).
Prior to Child Support making the decision, on 8 February 2023 Mr Bishop sent an email to Child Support advising that there was a binding child support agreement, and sent Child Support a signed copy of the binding child support agreement dated 3 July 2018. On 18 February 2023 Child Support accepted the application for a child support assessment and made a decision to accept the binding child support agreement from 8 February 2023.
Mr Bishop objected to this decision on the basis that the binding child support agreement should have been accepted on the date it was first sent to Child Support in 2018.
On 10 July 2023 an objections officer of Child Support disallowed Mr Bishop’s objection.
On 11 July 2023 Mr Bishop requested review by the Administrative Appeals Tribunal (the Tribunal). Mr Bishop spoke to the Tribunal on 13 November 2023 by way of a telephone conference and gave evidence on oath. Ms Stanley also spoke to the Tribunal on 13 November 2023 and gave evidence on affirmation. The Tribunal was provided with documents copied from the Child Support file (140 pages), a copy of which was provided to both Mr Bishop and Ms Stanley by Child Support prior to the Tribunal hearing. After the hearing, the Tribunal deferred its decision and requested additional information from Child Support (14 pages).

CONSIDERATION

The law relating to child support and binding child support agreements is detailed in the Child Support (Assessment) Act 1989 (the Act).
Section 92 of the Act explains when the Registrar must accept an application for acceptance of a binding child support agreement. If the Registrar is satisfied that an application has been properly made, the Registrar must accept the agreement. If accepted, subsection 93(2) of the Act then requires Child Support to generate an assessment (and a provisional notional assessment) from the day the agreement is accepted. Section 95 of the Act states what effect, if any, that agreement will have on the assessment.
Section 89 of the Act relates to formal requirements for applications. It provides that an application for acceptance of an agreement by the Registrar must be made in a manner specified by the Registrar. Section 150A of the Act provides that the Registrar may specify the manner in which an application is required to be made under the Act. An application to accept an agreement can be made orally, in writing or on an approved form.
Mr Bishop stated that he and Ms Stanley entered into a binding child support agreement (the agreement) in 2018. In the exchange of the agreement for signing and completion, it was agreed that Ms Stanley’s solicitor would register the agreement with Child Support. Mr Bishop stated that although confirmation of receipt by Ms Stanley’s solicitor of the agreement was provided to him when they received the agreement, no confirmation of registering the agreement with Child Support was sought or provided. Mr Bishop stated that he assumed that it had been provided to Child Support and so did not provide the agreement himself.
Ms Stanley told the Tribunal that when the application for a child support assessment was made to Child Support, she could not recall that the agreement had been sent to Child Support for acceptance. Ms Stanley stated that she did not have a signed copy of the agreement, she only had an unsigned copy, and when she spoke to Child Support they could not find a signed copy on their records. Ms Stanley also told the Tribunal that she could not recall speaking to Child Support in 2018 about the agreement.
The Tribunal requested, after the hearing, for Child Support to provide a copy of the information sent to Child Support by Ms Stanley’s solicitor in 2018, including the agreement and any correspondence. Child Support provided a copy of the signed agreement and an accompanying letter from [Law Firm 1], Ms Stanley’s solicitor, which was received by Child Support on 11 October 2018. The letter from [Law Firm 1], dated 8 October 2018, stated in part:
Please find enclosed Binding Child Support Agreement between [Ms Stanley] and [Mr Bishop].
We ask that you accept the Child Support Agreement. Please notify our office of your decision at your earliest convenience.
The Tribunal finds that Ms Stanley’s solicitor was an authorised representative with ordinary authority, and as such, could lodge forms on Ms Stanley’s behalf for the purposes of having an agreement accepted.
Child Support contacted Ms Stanley on 3 December 2018 to discuss registration of the agreement that had been sent on 11 October 2018, stating that a solicitor cannot make the request on her behalf. It is unclear as to why Child Support formed the view that Ms Stanley’s solicitor was not an authorised representative, and this is contrary to Child Support’s own information regarding authorised representatives as contained in the Child Support Guide.[1]
[1] Child Support Guide at 6.3.6.
In discussing registering the agreement with Ms Stanley, the Child Support officer states, according to the Child Support system (CUBA) notes, that the possible reasons for registering an agreement include ‘for FTB requirements and Collection purposes.’ The Child Support officer records that ‘as Agreement for Nil periodic payments – nothing for CSA to collect/enforce.’ The Child Support officer also states:
…if she wants to proceed CSA would need to go through a registration discussion that can be done verbally with both parties. Based on above discussion – [Ms Stanley] advised she won’t proceed with registering the Agreement/case at this time. Especially as CSA doesn’t have anything to collect even if registered.
The Tribunal carefully considered the evidence provided by Child Support and the evidence provided by Mr Bishop and Ms Stanley. It is not in dispute, and the Tribunal finds, that Mr Bishop and Ms Stanley entered into a binding child support agreement in accordance with the requirements under section 80C of the Act. They agreed on the terms of an agreement and they both signed the agreement. The agreement contains statements from each of them confirming that they received independent legal advice and also certificates signed by their legal representatives confirming that legal advice was provided. No evidence has been provided by either party to suggest that the agreement has been terminated under section 80D of the Act, and each party was given a copy of the signed agreement. Therefore, the Tribunal finds that the agreement is a binding child support agreement.
Such applications for acceptance of an agreement may be in writing or orally. Section 23 of the Child Support (Assessment) Regulations 2018 provides:
23 Date of making of application etc.
(1)An application for administrative assessment or for the acceptance of a child support agreement is to be taken to have been made on the day on which the application is received in an office of the Human Services Department.
Having regard to the wording of the letter from [Law Firm 1], the Tribunal finds that an application in relation to the acceptance of the agreement was received in writing by Child Support on 11 October 2018. The Tribunal finds that the agreement was signed by Ms Stanley on 3 July 2018 and by Mr Bishop on 8 June 2018.
Section 92 of the Act, as discussed in paragraph 8 of these Reasons, states that the Registrar must accept an application for acceptance of an agreement if the application is properly made. While subsections 92(3) and 92(5) of the Act provide for circumstances where an agreement must be refused, these provisions do not apply in this case. The Tribunal finds that the application for acceptance of the agreement was made in writing by Ms Stanley’s solicitor, who was an authorised representative at the time of making the application on 11 October 2018.
It was not open to Child Support to refuse to accept the agreement in circumstances where an application was properly made. The Tribunal has found that the application to Child Support was properly made on 11 October 2018 and therefore the Child Support Registrar had no choice but to accept the agreement.
The Tribunal further finds that the written application for acceptance of the agreement was not made to Child Support within 28 days after the day it was signed. The agreement was signed by Ms Stanley on 3 July 2018, after Mr Bishop signed the agreement on 8 June 2018. In accordance with paragraph 34B(2)(d) of the Act, the date from which the binding child support agreement applies is the day on which the application was made to the Registrar for acceptance of the agreement. The Tribunal has found that the date on which the application was made to the Registrar was 11 October 2018.
Accordingly, the Tribunal finds that the application for acceptance of an agreement was made on 11 October 2018 and the Registrar must then determine whether an application for an administrative assessment of child support could be accepted from 11 October 2018.

DECISION

[2023] AATA 4298

16 November 2023

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Remedies