Favargar and Nasary (Child support)

[2024] AATA 4112

Favargar and Nasary (Child support) [2024] AATA 4112 (29 August 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/BC028021

APPLICANT:  Mr Favargar

OTHER PARTIES:  Child Support Registrar

Ms Nasary

TRIBUNAL:Member S Letch

DECISION DATE:  29 August 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS
CHILD SUPPORT – application for child support assessment – father’s claim that application made before actual separation – separation under one roof – wife informed husband of intention to end relationship four days after making application – domestic violence, AVOs, previous separation and reconciliation – end of relationship does not require both parties’ agreement – decision under review affirmed

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

1. Mr Favargar and Ms Nasary are the parents of [the child]. This matter concerns a decision by Child Support to accept Ms Nasary’s application for a child support assessment made on 17 July 2023. Mr Favargar argues that he and Ms Nasary had not separated until 21 July 2023 when she informed him of her intention to end the relationship. Accordingly, he says the application made on 17 July 2023 ought not to have been accepted.

2. It is convenient by way of background to set out some extracts from the objections officer decision dated 6 May 2024 (unedited):

   …

   WE CONSIDERED THE FOLLOWING EVIDENCE IN THE DECISION

   On 17 July 2023, Ms Nasary lodged an application for a child support assessment with Mr Favargar for [the child]. Ms Nasary advised in her application that Mr Favargar and herself had separated on 17 July 2023.

   On 7 September 2023, we made the decision to accept Ms Nasary's application for assessment of child support from 17 July 2023.

   On 27 November 2023, Mr Favargar objected to our decision.

   Mr Favargar provided the following evidence for consideration:

   -    Application to vary domestic violence order. The documents notable contains the following On or about 21 July 2023 the aggrieved (Ms Nasary) told the respondent (Mr Favargar) she wished to separate and further advised the respondent she told Centrelink of this intention. The aggrieved cited to police ongoing arguments, verbal abuse from the respondent towards her, and his anger/mental issues as reasons for separating.

   On 24 April 2024, we contacted Ms Nasary to discuss the objection. Ms Nasary responded On 26 April 2023 I uploaded a document to Centrelink stating that Mr Favargar and I were separate under one roof. I then spoke with Mr Favargar, and he convinced me to withdraw the separation notification. On 1 July 2023 Mr Favargar and I had an argument and I decided it was over. There were years of fights and DV prior to this. I did not advise Mr Favargar that we were separated until a few weeks later as I was concerned about his reaction or that he would convince me not go through with it again. I sought a lot of advice from councillors who made me realise I was experiencing domestic violence. When I told Mr Favargar we were separating I told him I had already told Centrelink we were separated.

   …

   Mr Favargar has objected to the decision to accept Ms Nasary's application for assessment of child support from 17 July 2023, on the grounds that Ms Nasary did not notify him of the separation until 21 July 2023. Mr Favargar has provided evidence to support that Ms Nasary notified him of their separation on or about 21 July 2023.

   
   On objection, Ms Nasary confirms that she made the decision to separate from Mr Favargar on 1 July 2023, this is supported by a notification of separation in the Centrelink records on 1 July 2023. Ms Nasary advised she delayed notifying Mr Favargar of the separation due to domestic violence concerns.

   Mr Favargar submitted a domestic violence order as evidence indicating the presence of family and/or domestic violence.

   Its reasonable Mr Favargar may have rightly supposed that he and Ms Nasary were partners living together on a genuine domestic basis until otherwise notified on 21 July 2023.

   Ms Nasary reported their separation to Centrelink on 1 July 2023. Mr Favargar provided evidence of the presence family and/or domestic violence. Ms Nasary advised she delayed advising Mr Favargar of the separation due to family and/or domestic violence. We are satisfied that Ms Nasary made a decision on 1 July 2023 which changed the nature of the household and the nature of the commitment between herself and Mr Favargar.

   We are satisfied that Ms Nasary and Mr Favargar ceased living together as partners on a genuine bases on 1 July 2023.

   Therefore, when Ms Nasary applied for a child support assessment on 17 July 2023, she was not living with the other parent of the child as their partner on a genuine domestic basis and her application valid.

   We have made the decision to accept Ms Nasary's application for assessment of child support from 17 July 2023.

   The objection is disallowed.

   …

3. Mr Favargar and Ms Nasary participated in the Tribunal’s hearing by conference telephone.

4. Mr Favargar’s submissions were consistent with his written application to the Tribunal (unedited):

   Reason for Application: Ms Nasary and I seperated on - 21/7/23. I have provided Police paperwork where Ms Nasary admits the date in my review and to Child Support.

   Ms Nasary and I shared a p.o.box as we do not get mail home delivered in our township.

   Ms Nasary was not leaving the correspondence from child support in our shared mail box and I did not receive any correspondence from child support until they had already accepted her Claim.

   Ms Nasary supplied to child support our shared p.o box and my mobile number she disconnected a short time later leaving it impossible for child support or myself to correspond regarding the information supplied by Ms Nasary to fabricate the false information provided to child support which has seen me pay child support whilst still in a relationship with Ms Nasary.

   Some of her claims are:

   We lived under the same roof but I lived in a self contained part of the house while separated- we have a 3 bedroom house with 4 children living in with 1 x bathroom and toilet

   We seperated on the 1/7/23 when in fact we seperated on the 21/7/23 - I have been charged child support since the 17/7/23

   She was taking my mail knowing that her Claim would be approved if I did not receive a opportunity to supply the evidence to show her claim was a false declaration and dishonest information supplied

   THIS IS FRAUD and Child Support has allowed this fraud to be done without intervening after the fact I have provided evidence to show her dates are not true as well as other information Ms Nasary has put in her Child Support claim.

   Child support have not contacted me to discuss the appeal at all. I was granted a extension by the AAT and child support has once again made a discussion without any discussion with myself. They state they spoke to Ms Nasary and she fabricated a explanation which was taken a gospel. This is absolutely disgraceful and extremely unfair to me as the Payer of child support.

   I also was not given 28 days before her claim was approved. I will be taking this to the Umbudsman/me

5. Mr Favargar told the Tribunal that Ms Nasary, too, was subjected to a “DVO” (albeit a temporary one), and that he contests the accusations made by Ms Nasary. Mr Favargar said he understands that Ms Nasary had made representations to Centrelink on or around 1 July 2023 that they had separated; however, from his perspective, they continued to share the same bed and continued to be in a relationship in the same way they had been.  It was only on 21 July 2023 that he was advised by Ms Nasary that she considered the relationship had ended. A week or so later, he moved to live in a caravan nearby.

6. Ms Nasary told the Tribunal that there had been a long history of domestic violence. There are ongoing court proceedings in relation to those matters.  She said she had been taking advice from counsellors for a period of some months about the best way to leave the relationship. Although Ms Nasary’s recollection was perhaps understandably vague, particularly concerning exact dates given the passage of time, she was assisted by some of the documentary materials in the Child Support hearing papers. She recalled that there had been an argument on or about 1 July 2023 where she formed the clear view to end the relationship, and it was then that she likely approached Centrelink to advise she was “separated under one roof”. She said her claim as a single person took some time to process and was “backdated” from the date of her claim with Centrelink. She conceded it was not until the night of 21 July 2023 that she had the “final argument” with Mr Favargar and advised him the relationship had “ended”.

Application of the law

1. A parent may apply for 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: section 25 of the Child Support (Assessment) Act 1989. A “member of a couple” is defined in section 5.

2. The relevant law is accurately and simply summarised in simple terms in the Child Support Guide at 2.1.1:

   Living together

   A parent or non-parent carer may not apply for a child support assessment if they are living as the partner of the other parent, or a parent, of the child on a genuine domestic basis.

   The factors to be considered (SS Guide 2.2.5.30) in establishing whether people are living together as partners on a genuine domestic basis are:

   ·financial aspects of the relationship

   ·nature of the household

   ·social aspects of the relationship

   ·presence or absence of a sexual relationship, and

   ·nature of the commitment.

3. The Social Security Guide at 2.2.5.30 relevantly provides as follows:

   Each case must take into consideration a person’s particular situation, including but not limited to:

   ·the impact of family and/or domestic violence

   ·a person’s sexual orientation – particularly where it has not been disclosed to others

   ·a person’s cultural background

   ·a person’s ethnicity, or

   ·a person’s religious beliefs.

   …

   Family and/or domestic violence

   The presence of family and/or domestic violence, may indicate that a person is not a member of a couple and needs to be considered when assessing each of the 5 factors. Evidence may be required to support the presence of the family and/or domestic violence.

   Family and domestic violence includes, but is not limited to physical, sexual, financial, emotional and psychological abuse. All types of family and domestic violence should be considered, together with the 5 factors.

   …

   Determining living separately & apart on a permanent or indefinite basis

   A person is considered living separately and apart on permanent or indefinite basis when they are no longer a member of a couple because the relationship has broken down and there is a level of physical and/or emotional estrangement, resulting in one or more parties having no intention to reconcile. An emotional estrangement can occur independently of whether the parties live in the same house or not (2.2.5.50).

   The decision maker must establish if a breakdown in the relationship has led to an estrangement between the 2 people and if the separation is on a temporary, indefinite or permanent basis.

4. Importantly, the guidelines correctly observe that an intention not to reconcile a relationship which has broken down can be formed by “one or more parties”. In other words, if, at the time she applied for a child support assessment, Ms Nasary had formed the view to bring the relationship to an end, and a consideration of the five factors objectively supported a conclusion of the absence of a “member of a couple” relationship, the ultimate conclusion would be that she satisfied the requirement for making an application for a child support assessment on the basis that she and Mr Favargar were no longer members of the same couple.

5. I find Mr Favargar genuine in his understanding that the relationship had not ended until he was advised of same by Ms Nasary on the night of 21 July 2023. On that basis, the position he has taken in this application is entirely understandable.

6. However, the destruction of a relationship does not require both members to agree to agree, or to agree at the same time. It also does not require a physical separation; in other words, two people can be “separated under one roof”. I find Ms Nasary genuinely formed a view on or about 1 July 2023 that, following an argument, “there was no coming back” (to use her words). I accept her evidence that a feature of the relationship for an extended period involved forms of domestic violence, and that she had been receiving professional advice in the lead-up to these events as to the best way to extricate herself from the relationship. She advised Centrelink that she was living separately from Mr Favargar under the one roof from early July 2023 (albeit they continued to share the same bed given the small number of bedrooms in the house). I note that there are potentially very serious consequences for misleading Centrelink but I find Ms Nasary made a genuine representation to Centrelink that she was living separately and apart from Mr Favargar under one roof with effect from 1 July 2023.

7. I therefore find that by 17 July 2023, Ms Nasary had taken active steps to achieve financial independence from Mr Favargar by claiming Centrelink entitlements as a single person. In her mind, the relationship had been completely severed and she was no longer committed in any meaningful way to the relationship. It is understandable that, in the circumstances, she took some time before informing Mr Favargar on 21 July 2023 that she considered the relationship was over. Having regard to the five factors outlined above in the context of a history of domestic violence issues between Ms Nasary and Mr Favargar, I am comfortably satisfied that at the time of Ms Nasary’s application for a child support assessment on 17 July 2023, she should be regarded as no longer living with Mr Favargar on a genuine and domestic basis.

8. Accordingly, her application for a child support assessment was properly accepted. As this is the same conclusion as the objections officer, the decision under review will be affirmed.

DECISION

The decision under review is affirmed.