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

1. 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.

2. 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.

3. 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

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 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.

1. 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).

2. 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”.

3. 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 other on a permanent or indefinite basis at the time Ms Bartsch’s application was made.

4. Many factors are relevant in considering these questions, including whether and to what extent the parties co-habited; the existence of a sexual relationship; any merging of the parties’ finances and the degree of financial support or interdependence. Also relevant is the way the parties regarded themselves and how they behaved publicly.

5. The courts have considered the term “separation” in a number of different contexts, including under the Family Law Act 1975. Addressing the issue of the meaning of the term “separation”, Watson J said:

   In my view, separation means more than physical separation – it involves the destruction of the marital relationship (the ‘consortium vitae’). Separation can only occur where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention; or, alternatively, act as if the marital relationship has been severed. What comprises the marital relationship of each couple will vary. Marriage involves many elements, some or all of which may be present in a particular marriage - elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships.

   When it is asserted that a separation has taken place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged separation. Whether there has been a separation will be a question of fact to be determined in each case. (In the Marriage of Todd (No. 2) (1976) 9 ALR 401)

6. In Main v Main [1949] HCA 39, the High Court considered the two words "separately and apart" in the context of subsection 69(6) of the Supreme Court Act 1935 (WA) and in relation to circumstances where the husband was a chronic invalid confined to a nursing home. In that case, the High Court held that the two words "separately and apart" showed that there must be a physical separation and also a destruction of the consortium vitae or matrimonial relationship:

   The two words "separately and apart" show that physical separation is necessary and that it is not enough that there has been a destruction of the consortium vitae or matrimonial relationship while the spouses dwell under the same roof. In matrimonial law the expressions like "live separately", "separated" and "separation" are commonly used to indicate that the conjugal relationship no longer exists between the parties to the marriage. Although usually the existence of the conjugal or matrimonial relationship or consortium vitae means that the spouses share a common home and live in the closest association, it is not inconsistent with absences one from another, even for very long periods of time. It rests rather on a real mutual recognition by husband and wife that the marital relationship continues to subsist and a definite intention to resume the closer association of a common life as soon as the occasion or exigency has passed which has led to an interruption regarded by both as temporary.

7. In Staunton-Smith v SDSS (1991)FCA 674, the Court recast the factors first set out in Re Tang and Director-General of Social Services [1981] AATA 42 in terms appropriate to the decision whether two legally married people are living "separately and apart":

   (1)What are the living, eating and sleeping arrangements in the household between the applicant and the other party?

   (2)Do the applicant and the other party have a sexual relationship?

   (3)      Do the applicant and the other party have a social relationship?

   (4)What third parties (particularly children) are residing in the house and what is the relationship between each third party and the applicant and the other party?

   (5)What are the financial arrangements between the applicant and the other party? For example, are resources within the household pooled and household expenses shared?

   (6)Do the applicant and the other party hold themselves out as living separately and apart?

   (7)Do the applicant and the other party have a genuine belief that they are living separately and apart?

   (8)Does the existing relationship give rise to any moral, social or legal rights between the applicant and the other party?

   (9)Finally, what is the relationship between the applicant and the other party and does it contain any degree of permanence?

8. In Staunton-Smith the court concluded that the list in paragraph 12 of these Reasons is not exhaustive and each of these subjects does not have to be considered in every case. Further, the court noted that the tribunal must make its determination regarding whether a particular man and woman are, or are not living separately and apart only after assessing the totality of the evidence and other material that is before it.

9. The tribunal notes that the oral evidence during the hearing from the father and the mother is in direct conflict regarding the nature of their relationship. In short, the mother maintained that she was not living with the father on a ‘genuine domestic basis’ at the time of her application for an administrative assessment of child support while the father asserted he was living with the mother on a ‘genuine domestic basis’ at that time, and that their relationship did not end until November 2018, some nine months later.

10. During the hearing the father told the tribunal:

    ·     He and the mother had a fight in January 2018 and he moved out to a hotel and then went to [Country 1] to stay with his family to work out what to do next;

    ·     He told the mother just before he left that he had decided to go overseas to ‘sort things out’ and try and find a job;

    ·     He could not recall whether the mother agreed to him going overseas at the time;

    ·     While he was in [Country 1] he was in regular contact with the mother and they agreed that he would continue to look for paid employment;

    ·     While he was in [Country 1] he also transferred $500 in one transaction to the mother but he wasn’t able to give her any more money because he was unemployed for most of the time he was in [Country 1];

    ·     When he returned to Australia he gave the mother $1,000 cash-in-hand which he had saved from the paid work that he did in [Country 1] at the end of his stay there;

    ·     Their family and friends knew that they were having problems and that he needed to go and stay with his family in [Country 1] to ‘sort it out’;

    ·     At no time while he was overseas in [Country 1] did he think that they had formally separated – instead he believed that they were “working it out”;

    ·     While he was overseas they continued to have daily calls and send regular text messages to each other and he updated her on what he was doing;

    ·     They gradually reconciled through these communications and agreed that he would look for a job in Australia;

    ·     He was offered a job in [Country 1] and another in [City 1] and the mother agreed that he should accept the job in [City 1] and visit her and the child in Adelaide on a regular basis;

    ·     He was overseas until May 2018, primarily because he managed to secure a month of paid work in [Country 1] in April-May 2018 and he wanted to finish that work before returning to Australia;

    ·     his job in [City 1] commenced in June 2018 and so he returned to Australia in mid-May 2018 and spent a couple of weeks in Adelaide with the mother and the child before moving to [City 1] to commence his new job;

    ·     They discussed moving into their own home for more privacy, because up until then the mother and child were living with the maternal grandparents, however he wanted to wait until his income was more secure;

    ·     He was not involved in decision making or care of the child while he was in [Country 1] and the mother and maternal grandmother provided care for the child during this three and a half month period;

    ·     He did not contribute to the household expenses or bills of the mother or child when he was overseas, other than the $500 he transferred to the mother, and noted that there were no significant bills to pay because the mother and child were living with the maternal grandparents;

    ·     When he returned to Australia he stayed with the mother in Adelaide from [a date in] May 2018 for a couple of weeks and they lived as a ‘normal family’ and recommenced a sexual relationship;

    ·     While he was living and working in [City 1] from mid-June 2018, he returned to Adelaide every fortnight for the weekend and stayed with the mother, the child and the maternal grandparents.

11. In summary, the father said that after they had argued in January 2018 he was confused because he wasn’t expecting the police to be called and he had been finding it hard to get a job. However, he and the mother reconciled while he was overseas and agreed that he should come back to Australia and work in [City 1]. He also maintained that he had not been abusive to the mother in January 2018 and that there was no evidence that he had in any police report or court record.

12. The mother told the tribunal:

    ·     Their relationship had not been good even before their marriage and she felt that she had no control over her life;

    ·     She was assaulted when she was pregnant and living with the father in [Country 1], so she returned to Australia before the child was born;

    ·     The father then returned to Australia as well and after the child was born they tried to make it work, however the father didn’t apply for jobs in Australia even though she returned to work shortly after the child was born to support the family;

    ·     During this period the father would regularly threaten to return to [Country 1] and so when the father threatened this again during their fight in January 2018, she was concerned that he would leave and take the child with him;

    ·     During their fight in January 2018 the father assaulted her when she was holding the child and she was concerned for their physical safety;

    ·     She therefore contacted the police to intervene and then she took the child and stayed with a family friend to stop the father from taking the child away;

    ·     After their fight in January 2018 the father left to stay in a hotel and took all of his belongings with him;

    ·     Shortly before he left for overseas in February 2018 the father told her that he was going to [Country 1] but did not tell her how long he would be away;

    ·     At the time she thought that the father would be away indefinitely and that their relationship was over;

    ·     In addition, she did not want to continue in the relationship because she didn’t think it was safe to be with someone who she considered had assaulted her;

    ·     At the time her family and friends were all aware of what was happening and they all thought that the couple’s relationship was over;

    ·     She was in contact with the father while he was in [Country 1], but most of the time they had further arguments;

    ·     The father did not provide any financial or other support for the child while he was overseas and the $500 and $1,000 payments that he gave her were actually her share of the proceeds from the sale of their belongings which were in [Country 1];

    ·     She was conditioned by the father and his family and friends to try and reconcile but he didn’t agree to live with her in Adelaide which was further proof to her that their relationship had ended;

    ·     She spoke to a lawyer sometime in May 2018 before the father returned to Australia to see where she stood and was told that if they started living together again for more than three consecutive months then they would be seen to have reconciled their relationship, but she told the tribunal that they never reconciled for this amount of time;

    ·     When the father commenced work in [City 1] he did not return every fortnight to visit her and the child in Adelaide as he claims, but rather he made a maximum of three trips back to Adelaide in this period and kept cancelling his other planned weekend visits;

    ·     On two other occasions, in September 2018 after the father lost his job in [City 1] and in October 2018, when he came to help care for the child while the mother was ill, the mother attempted to reconcile with the father but there were further domestic violence incidents and the father left again to live in [City 1] so they never properly reconciled during this period.

13. The father submitted a number of text messages between the couple during March, April, May and June 2018 which he said showed that they were still in a close and loving relationship. The mother confirmed that she did send some text messages of endearment to the father during this period because she was conditioned to do so and she was concerned that he would become abusive if she didn’t. She also stated that there were multiple text messages between them during this period in which he was abusive towards her which he did not show the tribunal.

14. Both parents confirmed that they did not have joint bank accounts and that their finances were separate during the period under consideration.

15. The tribunal carefully considered the evidence of both the father and the mother and was satisfied on the basis of this evidence that they were not living on a genuine domestic basis and were living separately and apart from each other on an indefinite basis at the time Ms Bartsch’s application was made on 13 February 2018.

16. In reaching this conclusion the tribunal had particular regard to the fact that, at the time of the application for assessment, the father had moved out of the family home with his belongings and travelled to [Country 1] on a one way plane ticket giving no clear indication to the mother about whether and/or when he would return. In the tribunal’s view, this confirms that the couple were living separately and apart from each other on an indefinite basis at the time the application for assessment was made.

17. The tribunal also had regard to the evidence that the father and mother were financially independent, noting that there was only one transfer of $500 from the father to the mother during the entire time that the father was overseas and that the reason for this payment is strongly disputed between the parties. In addition, the tribunal had regard to the evidence of the mother that her family and friends, and the mother herself, thought that the relationship was over at the time the mother made an application for child support assessment.

18. After careful consideration of the all evidence before it, the tribunal therefore finds that the father and mother were not living together on a genuine domestic basis and that they were living separately and apart from each other on an indefinite basis, with effect from at least 13 February 2018, and thus the application the mother lodged on that date was a valid application under section 25 of the Act.

19. Finally, the tribunal notes that this decision relates to the status of the parties’ relationship as at the time that the mother applied for administrative review on 13 February 2018 and shortly thereafter. During the hearing the parties referred to several occasions after the father returned to Australia [in] May 2018 in which they attempted to reconcile. While these later attempts to reconcile are not relevant to the current matter, the tribunal notes that, in accordance with section 150E of the Act, if the father or the mother have evidence that they did reconcile after this application for child support was accepted, an application can be made to the Registrar to suspend the liability to pay child support for up to six months from the date of their reconciliation. Further, if the parties have evidence that they reconciled for more than six months, a decision can be made to terminate child support assessment.

DECISION

The decision under review is affirmed.