Frobisher and Elford (Child support)

[2022] AATA 4009

Frobisher and Elford (Child support) [2022] AATA 4009 (17 October 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC024470

APPLICANT:  Mr Frobisher

OTHER PARTIES:  Child Support Registrar

Ms Elford

TRIBUNAL:Member J Leonard

DECISION DATE:  17 October 2022

DECISION:

The decision under review is set aside and the matter is sent back to the Child Support Registrar for reconsideration in accordance with the direction that a written application for acceptance of a binding child support agreement was made to the Registrar on 3 May 2022. The Registrar must assess the annual rate of child support payable by Mr Frobisher in accordance with the binding child support agreement from 3 May 2022.

CATCHWORDS

CHILD SUPPORT – child support agreement – when a binding child support agreement should be applied to administrative assessment – decision under review set aside and sent back with directions

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

BACKGROUND

1. This review is about the date from which a binding child support agreement should be applied to the child support assessment.

2. Mr Frobisher and Ms Elford are the parents of one child. The child support case commenced on 21 November 2011 and has been collectable by Services Australia (Child Support).

3. On 3 May 2022 Mr Frobisher’s solicitor sent Child Support a signed copy of a binding child support agreement dated 4 April 2022.

4. On 13 May 2022 Mr Frobisher rang Child Support as a child support payment had been deducted from his wage. On 3 June 2022 Child Support decided to accept the binding child support agreement with an effective date of 13 May 2022.

5. Mr Frobisher objected to this decision on the basis that the binding child support agreement should have been accepted on the date it was signed (4 April 2022) or alternatively on 5 May 2022 when he spoke to a Child Support officer about the agreement.

6. On 2 August 2022 an objections officer of Child Support disallowed Mr Frobisher’s objection. On 17 August 2022 Mr Frobisher requested review by the Administrative Appeals Tribunal (the Tribunal).

7. Mr Frobisher attended the hearing on 17 October 2022 by way of a telephone conference and gave evidence on affirmation. Ms Elford elected not to take part in the hearing. Immediately after the hearing Mr Frobisher provided additional documents, which are numbered A1 to A4.

CONSIDERATION

1. The law relating to child support and binding child support agreements is detailed in the Child Support (Assessment) Act 1989 (the Act).

2. Section 92 of the Act explains when the Registrar must accept an application for acceptance of a binding child support agreement. If the Registrar is satisfied that an application has been properly made, the Registrar must accept the agreement. 

3. Section 89 of the Act relates to formal requirements for applications. It provides that an application for acceptance of an agreement by the Registrar must be made in a manner specified by the Registrar.  Section 150A of the Act provides that the Registrar may specify the manner in which an application is required to be made under the Act.  An application to accept an agreement can be made orally, in writing or on an approved form (CS1666).

4. The signed binding child support agreement and an accompanying letter was provided to Child Support on 3 May 2022 by Mr Frobisher’s solicitor. The Tribunal finds that Mr Frobisher’s solicitor is an authorised representative with ordinary authority. As such, his solicitor can lodge forms on Mr Frobisher’s behalf for the purposes of child support agreements[1].

   [1] Child Support Guide 6.3.6.

5. The letter from [Ms A], solicitor, stated in part:

   On behalf of our client, we enclose Binding Child Support Agreement dated 4 April 2022 (“the Agreement”) for acceptance.

   …

   Should you require any further information or documents please do not hesitate to contact our office. Otherwise, we look forward to receipt of confirmation the Agreement has been registered.

6. The Tribunal carefully considered the evidence provided by Child Support and the evidence provided by Mr Frobisher. It is not in dispute that the parents agreed on the terms of a binding child support agreement and that they both signed the agreement. There is no dispute that the agreement was properly made as the legislation requires. The issue in dispute is the date from which the binding child support agreement applies.

7. Consent orders in relation to the care of the child were filed in the Federal Circuit and Family Court of Australia on 2 May 2022. The binding child support agreement provided that it would come into effect on the day of the making of the Consent Orders.

8. The Tribunal agrees with Child Support that an application is required in relation to the acceptance of a binding child support agreement. 

9. Section 23 of the Child Support (Assessment) Regulations 2018 provides:

   23  Date of making of application etc.

   (1)An application for administrative assessment or for the acceptance of a child support agreement is to be taken to have been made on the day on which the application is received in an office of the Human Services Department.

10. Having regard to the wording of the letter from [Ms A], the Tribunal finds that an application in relation to the acceptance of the agreement was received in writing by Child Support on 3 May 2022.

11. For the sake of completeness, the Tribunal also noted Mr Frobisher’s submission that in speaking to a Child Support officer on 5 May 2022 about the agreement, he made an oral application for the agreement to be accepted.

12. The Child Support papers do not contain evidence that Mr Frobisher spoke to an officer on 5 May 2022. The objections officer noted that the attempt to speak to Mr Frobisher was unsuccessful. The file note dated 5 May 2022 refers to an ‘inbound call’ and an unsuccessful attempt to call Mr Frobisher about ‘agreements’ at 8:29 am.

13. Mr Frobisher’s evidence is that he rang Child Support on the 131 number at 7:58 am and again at 8:43 am as his solicitor had informed him the agreement had been forwarded to Child Support and he wanted to ensure it had been received and nothing else was required. Mr Frobisher thinks the call at 7:58 am went unanswered, so he rang back at 8:43 am and he spoke to a man who confirmed the documents were received and he would receive a confirmation email to say the agreement was accepted.

14. Immediately after the hearing Mr Frobisher provided call logs from his mobile phone which confirm his oral evidence. Mr Frobisher does not recollect receiving a call from Child Support at 8:29 am. His second call to 131272 lasted 8 minutes and 31 seconds.

15. The Tribunal is satisfied that Mr Frobisher had no reason to ring Child Support on 5 May 2022 other than to ensure the binding child support agreement was implemented and that this constituted a verbal application for acceptance.

16. Despite a lack of corroborating evidence in the papers, the Tribunal is satisfied that Mr Frobisher made a verbal application for the agreement to be accepted on 5 May 2022. This is a moot point, as it was made two days after the written application was made.

17. The Tribunal finds that the written application for acceptance of the agreement was not made to Child Support within 28 days after the day it was signed. In accordance with paragraph 34B(2)(d) of the Act, the date from which the binding child support agreement applies is the day on which the application was made to the Registrar for acceptance of the agreement. The Tribunal has found that the date on which the application was made to the Registrar was 3 May 2022.

DECISION

The decision under review is set aside and the matter is sent back to the Child Support Registrar for reconsideration in accordance with the direction that a written application for acceptance of a binding child support agreement was made to the Registrar on 3 May 2022. The Registrar must assess the annual rate of child support payable by Mr Frobisher in accordance with the binding child support agreement from 3 May 2022.