Draper and Holloway (Child support) - [2022] AATA 1698

Draper and Holloway (Child support) [2022] AATA 1698 (3 May 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/AC022407
APPLICANT:  Mr Draper
OTHER PARTIES:  Child Support Registrar
Ms Holloway

TRIBUNAL:Senior Member M Kennedy
DECISION DATE: 3 May 2022
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the binding child support agreement is accepted for registration.

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 substituted

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 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

There is a single issue for the Tribunal to determine in this review: whether a binding child support agreement must be accepted by the Child Support Registrar (the Registrar). This question must be determined by the legislative scheme in the Child Support (Assessment) Act 1989 (the Act).
Background
Mr Draper and Ms Holloway are the parents of [Child 1] and [Child 2]. Amongst other arrangements surrounding the breakdown of their marriage, Mr Draper and Ms Holloway signed a document entitled ‘Binding Child Support Agreement’ (the Agreement). Although the document is undated, I find that Agreement was entered into by the parents contemporaneously with the signing of certificates of legal advice on 10 August 2017.
On 17 July 2017, Mr Draper provided an advance copy of the Agreement to the Department of Human Services (the Department) along with an application for acceptance of the Agreement in the prescribed form.
The Agreement is flawed in its drafting. Paragraph 10 of the document is internally inconsistent. I reproduce the problematic aspects below verbatim (emphasis added):
[10] As of 1^st February 2018, by way of periodic child support payments, the father shall pay to the mother the sum of $200.00 per week being the amount of $100.00 per child, such sum to be paid fortnightly at the rate of $400.00 per fortnight per child until the children reach the age of 18 years or the completion of High School….

Apparently in light of the inconsistency in the text of the Agreement, on 11 October 2017, the Department decided the Agreement would not be accepted. The reason for that refusal is not well explained, described in the notification letter of that date merely as ‘no allowable provisions made’.
On analysis, this brief notation of reasons is best understood to mean that at that time the Department considered that the Agreement did not contain any of the provisions described in section 84 of the Act that may be included in a child support agreement, and so (pursuant to subsection 81(2) of the Act) it was neither a binding nor limited child support agreement, and therefore not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] AATA 1698
Decision Date: 3 May 2022

CaseChat Overview and Summary

The matter of *Draper and Holloway* concerned an application to review a decision made by the Registrar of the Child Support Agency. The dispute centred on whether a financial agreement entered into by the parties met the requirements of a binding child support agreement under the relevant legislation. The review was heard by Magistrate Kennedy SM in the Magistrates Court.

The primary legal issue before the Court was to determine whether the financial agreement satisfied the conditions stipulated in section 87 of the *Child Support (Registration and Collection) Act 1988* (Cth) for it to be considered a binding child support agreement. This involved an assessment of whether the agreement was in writing, signed by both parties, and whether it contained provisions for the payment of child support that were not inconsistent with the Act.

Magistrate Kennedy SM reasoned that for an agreement to be binding under section 87, it must clearly and unequivocally provide for the payment of child support. The Court found that the agreement in question, while in writing and signed by both parties, did not sufficiently detail the specific child support obligations in a manner that complied with the legislative requirements. Consequently, the Court determined that the agreement did not meet the threshold for a binding child support agreement.

The Court set aside the Registrar's decision and substituted its own finding that the financial agreement was not a binding child support agreement.

Orders