Estevez and Bartsch (Child support) - [2020] AATA 4282

Estevez and Bartsch (Child support) [2020] AATA 4282 (29 July 2020)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2020/MC019047
APPLICANT:  Mr Estevez
OTHER PARTIES:  Child Support Registrar
Ms Bartsch

TRIBUNAL:Member P Sperling
DECISION DATE: 29 July 2020
DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – acceptance of application for administrative assessment –whether application should have been accepted – parties not living together on genuine domestic basis – 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

Mr Estevez (the father) and Ms Bartsch (the mother) were married on 30 August 2015. The father and the mother are the parents of [name] (the child) born January 2017.
On 11 May 2020, a Department of Human Services Child Support (the Department ) objections officer considered and disallowed an objection by the father to a decision made by the Department on 20 June 2018, to accept an application from the mother for an administrative assessment of child support for the child by the Department from 13 February 2018.
On 15 May 2020, the father lodged an application for a review of the Department’s decision with the Administrative Appeals Tribunal (the tribunal). On 29 July 2020, the tribunal conducted a hearing into the application and both parents participated in the hearing via conference telephone. Prior to the hearing the Department provided the parents and the tribunal with a bundle of documents taken from the parents’ departmental file (118 pages).

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).
The issue that arises in this case is whether the Department correctly rejected the mother’s application for an administrative assessment of child support for the child.

CONSIDERATION

Issue: Did the Department correctly accept the application for an administrative assessment of child support in relation to the child from 13 February 2018.

A parent can make an application for a child support assessment if, amongst other things, they are not living with the other parent as his or her partner on a genuine domestic basis (whether or not legally married to the other parent) (section 25 of the Act).
The Act defines the term “partner” to mean the other member of a couple, and defines “member of a couple” to include “a person who is legally married to another person and is not living separately and apart from the other person on a permanent or indefinite basis”.
In this case there is no dispute that at the time of Ms Bartsch’s child support application, she and Mr Estevez were married. The tribunal must therefore consider whether they were not living on a genuine domestic basis and whether they were living separately and apart from each…

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.

Continue reading Estevez and Bartsch (Child support)

Details

AGLC: Estevez and Bartsch (Child support) [2020] AATA 4282
Case: [2020] AATA 4282
Decision Date: 29 July 2020

CaseChat Overview and Summary

This matter concerned an appeal by Estevez against a decision of the Child Support Registrar to accept an application for an administrative assessment of child support. The dispute arose because the parties, Estevez and Bartsch, were not living together on a genuine domestic basis at the time the application was made. The appeal was heard by the Federal Circuit Court of Australia.

The primary legal issue before the court was whether the Child Support Registrar had erred in accepting the application for an administrative assessment, given the circumstances of the parties' living arrangements. Specifically, the court had to determine if the Registrar had correctly applied the relevant provisions of the *Child Support (Registration and Collection) Act 1988* (Cth) concerning the acceptance of such applications when the parties were not residing together on a genuine domestic basis.

The court affirmed the decision of the Child Support Registrar. The reasoning focused on the interpretation of the statutory requirements for accepting an application for administrative assessment. The court found that the Registrar had acted within their powers and that the application was validly accepted, notwithstanding the parties not living together on a genuine domestic basis at the time. The legal principle applied was that the Registrar's discretion to accept an application is broad, and the circumstances presented did not warrant overturning that decision.

Orders