FFTS and Child Support Registrar (Child support second review)

[2023] AATA 634

FFTS and Child Support Registrar (Child support second review) [2023] AATA 634 (31 March 2023)

Division:GENERAL DIVISION

File Number(s):      2022/2995

Re:FFTS

APPLICANT

AndChild Support Registrar

RESPONDENT

AndFKGR

OTHER PARTY

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:31 March 2023

Place:Sydney

Pursuant to section 40A of the Administrative Appeals Tribunal Act 1978 (Cth) the Other Party’s request to issue summons to provide documents to Centrelink is refused.

.............................[SGD]..........................................

The Hon. John Pascoe AC CVO, Deputy President

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.

CATCHWORDS

PRACTICE AND PROCEDURE – objection to the issue of summons to give evidence – whether the requested summons would materially assist the Tribunal in determining the issues – request to issue summons refused.

LEGISLATION

Administrative Appeals Tribunal Act 1978 (Cth) – Section 40A

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

31 March 2023

1. The Applicant seeks review of a decision of AAT1, as follows:

   (a)The decision under review is set aside and a new care determination made that the care percentages in respect of child B were 0% to each parent from 14 June 2019;

   (b)Section 94H of the Child Support (Registration and Collection) Act 1988 applies in this matter, and no special circumstances prevented [FKGR] from lodging his appeal to the Tribunal at any earlier time than he did (which was on 28 August 2021); but,

   (c)A “child support terminating event” occurred on 14 June 2019, and the Registrar must now give immediate effect to that child support terminating event.

2. On 14 January 2023 the Other Party to the dispute lodged an application for summons addressed to Centrelink, seeking that they provide the following documents:

   (a)All payment records for both [Child 3] and [Child 2], and the basis of those payments:

   (i)In addition, a copy of the application and supporting information submitted to Centrelink for support payments;

   (b)Copies of all communications and call logs between Centrelink, Child Support Agency (CSA) and the Applicant in relation to the two children;

   (c)Copies of all paperwork and communications with CSA relating to a fraud report lodged in relation to [Child 3]; and

   (d)Confirmation of the Applicant’s legal marriage status;

3. Section 40A of the Administrative Appeals Tribunal Act 1975 (Cth) contains the Tribunal’s powers regarding the issue of summons:

   Power to summon person to give evidence or produce documents

   (1)For the purposes of a proceeding before the Tribunal, the President, an authorised member or an officer of the Tribunal may summon a person to do either or both of the following, on the day, and at the time and place, specified in the summons:

   (a) appear before the Tribunal to give evidence;

   (b) produce any document or other thing specified in the summons.

   (2)The President or an authorised member may refuse a request to summon a person.

   (3) A person may, before the day specified in the summons, comply with a summons to produce a document or thing by producing the document or thing at the Registry from which the summons was issued. If the person does so, the person is not required to appear before the Tribunal unless:

   (a) the summons or another summons requires the person to appear before the Tribunal; or

   (b) the Tribunal directs the person to appear before the Tribunal.

4. In this application, the Other Party stated in the reasons that:

   I believe [FFTS] has again defrauded Centrelink and believe the CSA are not only aware of the fraud but actively covering for it. I allege [FFTS] claimed [Child B] full residency for 18 months claiming benefits she was not eligible for stealing over $10,000 from Australian tax payers and she may have even pretended to be single or made herself legally single despite being married to maximise the fraud. [FFTS] has already been caught defrauding Centrelink for near $10,000 when claiming 100% care of the children for two years when she only had 55%. She should have been charged and put into jail when she did it the first time, which would have saved me a decade of CSA partnering her crimes and abuses, she will not be allowed to get away with this the second time if it is so deiblerate and orchestrated and this is the only way to prove it because it seems as though the CSA is only here to help her get away with crime which is why the AAT should be reviewing the actions of the CSA staff and subpoenaing CSA as per my previously denied request.

5. He stated that he was requesting the same information from the Child Support Agency (CSA), because ‘I believe they are falsely claiming to be neutral’. The Other Party then went on to elaborate further:

   I want the CSA to confirm any and all correspondence between the parties including any advise provided, I believe I have been significantly prejudiced by the CSA/AAT allowing [FFTS] to provide her evidence in secret, especially as her grounds for such are outrageous without cause.

   I have been subjected to a decade of persecution by the CSA which they will always deny. The CSA have partnered with [FFTS] to destroy my life, I am not anti-child support, I have always been willing to contribute but what I have been subjected to is a persecution and violation for being a father. I am demanding transparency at this point.

   The CSA should be prosecuting the mother for her fraud, instead they are challenging the independent resolution body undermining it authority to do right , to correct their clear frauds. Fraud has occurred here, it is well documented, so to the CSA failures in collision with the fraud, and these are not isolated incidents.

6. In relation to his dealings with the CSA and the AAT the Other Party also stated:

   I expect the AAT to stand up for itself and fight for its right to be just and not wilt at the challenge. The AAT has already embarrassed itself with the stay hearing and providing a dire warning to me that it is willing to entertain the idea that laws and regulations can be manipulated to cover crime

7. The first issue to be dealt with is that the Summons is not addressed to the CSA. The solicitor for the CSA told the Tribunal however, that the summons to Centrelink was essentially in the same terms as if the summons was addressed to the CSA. I note that the Other Party previously lodged a summons request addressed to the CSA, seeking similar documents, which was refused by the Tribunal, differently constituted, on 13 October 2022 on the basis that it is not appropriate for summonses to issue between parties to a dispute.

8. The solicitor for the CSA also relied upon the Agencies written submissions to the Tribunal and stated that although the CSA normally adopts a position of neutrality, it considered it appropriate in the current matter to make submissions to the Tribunal, opposing the grant of the application.

9. The Other Party in his oral submissions reiterated his claims in relation to alleged fraud and discrimination against him by the CSA.

10. The Applicant had requested that she be heard only in the absence of the Other Party. The Other Party objected strongly to such a course being followed and believed it to be prejudicial to him. Clearly there is a high level of conflict between the parties.

11. In light of the Other Party’s objections, I explained to the parties present that I felt I had enough information based on their submissions to make a decision in relation to this request for summons, and that in all of the relevant circumstances I would have my Associate contact the Applicant to see if she would consent to the matter being decided without her giving oral evidence as to the matter, especially as her written arguments were in line with those of the Respondent. The Applicant gave consent to this course being followed.

12. I acknowledge that the Tribunal’s approach in this instance may be somewhat unusual, but in my view the preferable approach was to avoid adding further fuel to what appears to be a very volatile situation, in which the parties are unable to communicate between each other or even be on the telephone at the same.

13. Having considered all of the evidence in the matter, including the written submissions of all parties, and noting that the Other Party gave further written material to the Tribunal, which purported to refute some of the arguments raised by the solicitor for the Respondent, in my view it is clear on the face of the summons that it does not relate to the matter before the Tribunal, which is a review of the decision of AAT1.

14. Claims of fraud, conspiracy, or discrimination, whatever their merit, are not part of a review of the decision of AAT1, which relates only to the percentage of care for the relevant child (referred to by AAT1 as ‘Child B’) during the relevant period. 

15. It is important that the Other Party understand that the Tribunal is not making any findings in relation to the validity of his claims, but simply that those matters are not within the remit of the Tribunal in a review of the decision of AAT1.

16. After a careful review of the material sought by Other Party, the Tribunal finds that none of the material sought is relevant to the issue before the Tribunal. Accordingly, the request to issue summons is refused pursuant to section 40A of the AAT Act.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

.............................[SGD].......................................

Associate

Dated: 31 March 2023

Date(s) of hearing:	27 March 2023
Applicant:	In person
Solicitors for the Respondent:	Aaron Taverniti
Other Party:	In person