Claude and Claude (Child support)

[2022] AATA 3960

Claude and Claude (Child support) [2022] AATA 3960 (31 August 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/AC023930

APPLICANT:  Ms Claude

OTHER PARTIES:  Child Support Registrar

Mr Claude

TRIBUNAL:Member M Martellotta

DECISION DATE:  31 August 2022

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – whether application for administrative assessment made by third party was reviewable – 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. This review concerns the particulars of assessment and a decision by Services Australia (the Agency) to apply a multi-case allowance. The assessment relates to a child support case registered by the Agency since 13 September 2011.

2. The Agency issued an assessment on 10 December 2021 which included a multi-case allowance for Mr Claude that had been applied to the assessment from 1 August 2020. Ms Claude sought review of that decision.[1] On 10 May 2022 the Agency disallowed Ms Claude’s objection.

   [1] The Agency granted Ms Claude an extension of time within which to object.

3. Ms Claude and Mr Claude attended a hearing by telephone conference. They each made submissions and provided evidence. Other evidence included the Agency file.

ISSUES

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

2. The issue that arises in this case is whether the Agency correctly applied a multi-case allowance to the child support assessment for a past period.

CONSIDERATION OF EVIDENCE AND STATUTORY PROVISIONS

1. Ms Claude submits that the particulars of assessment for a past period are incorrect as Mr Claude and his wife were never separated and there is no factual basis for the multi-case allowance to apply to their assessment.

2. In her evidence Ms Claude described how throughout the period that Mr Claude asserts he was separated, their daughter continued to stay at her father’s home where he lives with his wife and had regular interactions with Mr Claude, his wife and their children. In support she provided text messages which she says demonstrate that there was no change in Mr Claude’s living arrangements including his relationship with his wife.

3. Mr Claude said that he and his wife had a period of separation but that they have since reconciled. He said that they did not want to share this information with any other people and that he maintained the impression that he was still together with his wife so as not to cause distress to his daughter as it was important for her wellbeing to maintain a sense of stability. This would include him being at the former matrimonial home when his daughter was in his care and continuing to attend events with this daughter in the company of his wife and their children. He said that due to his wife being unwell and other personal issues it was not a priority to advise the Agency that he and his wife had reconciled in June 2021 and this is why he did not provide this information until contacted about the objection in March 2022.

4. The annual rate of child support is determined by administrative assessments in accordance with legislated formulas set out in Division 2 of Part 5 of the Act. The particular circumstances of each case determines which formula is to be applied. Cases in which there a multi-case support cases are provided for in subdivision C of the Act.

5. A multi-case allowance will be applied to an assessment in cases where a parent has more than one child support case. Section 47 of the Act sets out the method for working out a multi-case allowance. It results in an allowance being deducted from that parent’s adjusted taxable income to recognise their responsibility for child support for children in another case. This results in a different formula being applied to calculate the child support assessment.

6. In the circumstances of this matter, whilst it is open to Ms Claude to object to the particulars of her assessment, she is in effect seeking review of the Agency’s decision to accept an application for an administrative assessment for another child made by a third party (Mr Claude’s wife). Whilst it is accepted that the Agency’s decision in that matter has a direct impact upon the particulars of Ms Claude’s assessment, the originating decision which is the cause of Ms Claude’s objection is not, in the tribunal’s view, a matter over which the tribunal has any discretion.

7. In effect, upon the Agency receiving an application for an assessment of child support from (in this case) Mr Claude’s wife, the Registrar was required to make a decision whether to grant or refuse that application. If accepted, then the Registrar is required by legislation to apply the relevant formula to the assessments pursuant to Part 5 of the Act. As noted, the legislation in turn sets out the formula to be applied in a multi-child case. In the tribunal’s view it is unable to go behind the application of the administrative assessment in such circumstances.

8. The tribunal notes that Ms Claude is seeking review of the particulars of assessment for a past period, and that since then, upon updated advice provided by Mr Claude to the Agency that he reconciled with his wife from 27 June 2021, which has resulted in the multi-case allowance ceasing.

9. In the tribunal’s assessment, having had the opportunity to test the parties’ evidence at hearing, it holds some reservations about the explanation provided by Mr Claude regarding the circumstances of his separation. In this regard the tribunal notes that Mr Claude failed to update the Agency that he and his partner had reconciled until being prompted to do so by Ms Claude’s objection. Furthermore, his description of how he in effect maintained the façade of still being in a relationship with his wife (which included pretending to be living in the matrimonial home) for the benefit of his daughter did not strike the tribunal as particularly convincing.

10. Notwithstanding the above, the factual question of whether or not Mr Claude had in fact separated from his wife during the relevant period, and the decision to accept the assessment application made by Mr Claude’s wife on that basis, was and is a matter for the Registrar to determine.

11. For these reasons the tribunal affirms the decision under review.

DECISION

The decision under review is affirmed.