Deverrell and Algar (Child support)

[2018] AATA 1474

Deverrell and Algar (Child support) [2018] AATA 1474 (28 February 2018)

DIVISION:   Social Services & Child Support Division

REVIEW NUMBER:  2017/MC013179

APPLICANT:  Mr Deverrell

OTHER PARTIES:  Child Support Registrar

Ms Algar

TRIBUNAL:  Ms J Cuthbert, Member

DECISION DATE:  28 February 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS

Child support - Acceptance of an application for an administrative assessment - The carer entitled to child support was an eligible carer on the date of the 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

BACKGROUND

1. Mr Deverrell and Ms Algar are the parents of [Child 1] (born 2012). This review concerns whether an application made by Ms Algar for a child support assessment for [Child 1] should have been accepted.

2. On 26 November 2016 Ms Algar applied for an assessment for [Child 1]. Her application was accepted on 16 January 2017. Mr Deverrell was the parent liable to pay child support under the assessment that was made from 26 November 2016.

3. Mr Deverrell’s objection to the decision to accept Ms Algar’s application for assessment was disallowed on 12 April 2017.

4. On 16 November 2017 Mr Deverrell applied to this tribunal for a review of the objection decisions. He was granted an extension of time in which to lodge his application.

5. The matter was heard on 28 February 2018. Mr Deverrell  and Ms Algar both attended the hearing by telephone. In addition to the oral evidence of Mr Deverrell  and Ms Algar the tribunal had regard to documents provided by the Department (folios 1 to 198) and documents provided by Mr Deverrell  (folios B1 to B12).

CONSIDERATION

1. The relevant legislation is contained in the Child Support (Assessment) Act 1989 (the Act). A person can apply for a child support assessment for a child under section 25 of the Act if the child meets the requirements set out in section 24 of the Act. That section requires that the child is under 18 and is not a member of a couple. The child must also be present in Australia on the day the application for child support was made or be an Australian citizen, or ordinarily resident in Australia on the day the application was made.

2. There is no dispute that [Child 1] is aged under 18 and is not a member of a couple. Although he was in [Country 1] on 26 November 2016 when Ms Algar made the application for a child support assessment, the tribunal is satisfied that [Child 1] was born in Australia. He is an Australian citizen and travelled to [Country 1] with Ms Algar on an Australian passport in October 2016.

3. Section 25 of the Act also states that if a person who applies for a child support assessment is not a resident of Australia on the day the application is made sections 29A and 29B must also be met. The tribunal is satisfied that at the time Ms Algar made the application she had left Australia with the intention of visiting an aunt who was ill. She was also considering marriage to a person in [Country 1] and they married [in] November 2016. She contends that she was not intending to stay in [Country 1] as all of her family are in Australia. She said that her husband has since applied for a visa to live in Australia. There is no dispute that Ms Algar returned to Australia in May 2017 although Mr Deverrell  suggests that she only did so in order to take part in court proceedings. The tribunal finds that for the reasons set out below it is not necessary to determine whether Ms Algar was a resident of [Country 1] or Australia on 26 November 2016.

4. Section 29A provides that the person against whom child support is sought must be an Australian resident or resident in a reciprocating jurisdiction on the date the application is made. Mr Deverrell does not dispute that he was an Australian resident on 26 November 2016.

10.  Section 29B states that an application made by a person who is resident in a reciprocating jurisdiction must be made by the overseas authority of the reciprocating jurisdiction on behalf of that person. The tribunal finds that even if Ms Algar was a resident of [Country 1] on 26 November 2016 and not a resident of Australia, [Country 1] is not a reciprocating jurisdiction for the purposes of the child support legislation.

11.  As a consequence of the operation of sections 25 and 29B a person who is a resident of a non-reciprocating jurisdiction can make an application directly to the Department, in the same way as a person who is a resident of Australia.

12.  The tribunal notes Mr Deverrell ’s claim that he had not been aware that Ms Algar had taken [Child 1] overseas. On 5 December 2016 Mr Deverrell  obtained an order from the Federal Circuit Court which prevented [Child 1] from travelling overseas. However, there is no evidence that any earlier order had been made concerning the care of [Child 1] (despite the court being satisfied of the current arrangements when a divorce order was made on 14 November 2016). The tribunal finds no basis to find that Ms Algar was not an eligible carer at the time she made her application.   

13.  The tribunal finds that Ms Algar’s application of 26 November 2016 was properly made and should be accepted.

DECISION

The decision under review is affirmed.