Goring and Daneman (Child support)

[2021] AATA 1271

Goring and Daneman (Child support) [2021] AATA 1271 (18 February 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC020245

APPLICANT:  Ms Goring

OTHER PARTIES:  Child Support Registrar

Mr Daneman

TRIBUNAL:Member A Schiwy

DECISION DATE:  18 February 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – child support agreement – refusal to register agreement – whether agreement meets the requirements of a child support 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

BACKGROUND

1. Ms Goring and Mr Daneman are the separated parents of two children.

2. A child support case has been registered with the Department of Human Services (now Services Australia) (Child Support) since 2016. 

3. The parents signed a ‘Binding Child Support Agreement’ on 17 August 2017.  Mr Daneman lodged the agreement with Child Support in August 2017 but was advised that it did not meet the child support legislation requirements and he withdrew his application to have the agreement registered.

4. On 9 April 2020 Ms Goring applied to Child Support to have the agreement registered.

5. On 8 May 2020 Child Support decided to refuse the application for registration.

6. On 13 May 2020 Ms Goring objected to the decision.  On 26 October 2020 a Child Support objections officer disallowed the objection.

7. On 16 November 2020 Ms Goring applied to this tribunal for an independent review of the objections officer’s decision.

8. A hearing into the application for review was held by the tribunal on 18 February 2021.  Ms Goring and Mr Daneman participated in the hearing by conference telephone and gave evidence under affirmation during the hearing.

9. The tribunal had before it relevant documents provided to it by Child Support pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975, which were labelled folios 1–374.  Mr Daneman also provided additional submissions and documents (B1 to B48).  A copy of the papers was provided to the parents prior to the hearing.

ISSUES

1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Act).

2. Parents are able to lodge an agreement for a Binding Child Support Agreement with Child Support, however for it to be registered it must comply with subsection 81(2) of the Act (refer to section 80C of the Act).  Subsection 81(2) states that an agreement is a Binding Child Support Agreement if it complies with, among other things, section 84 of the Act.

3. Subsection 84(1) of the Act states that an agreement is not a Child Support Agreement unless it includes one or more of the following kinds of provisions:

   (a)  provisions under which a party is to pay child support for a child to another party in the form of periodic amounts paid to the other party;

   (b)  provisions under which the rate at which a party is already liable to pay child support for a child to another party in the form of periodic amounts paid to the other party is varied;

   (c)  provisions agreeing between parties any other matter that may be included in an order made by a court under Division 4 of Part 7 (departure orders);

   (d)  provisions (the non-periodic payment provisions) that state:

   (i)  that a party (the liable party) is to provide child support for a child to another party otherwise than in the form of periodic amounts; and

   (ii)  that the annual rate of child support payable for the child by the liable party under any relevant administrative assessment is to be reduced, in the manner specified under subsection (6), by the amount of child support to be provided by the liable party;

   (e)  provisions (the lump sum payment provisions) that meet the requirements of subsection (7) and that state:

   (i)  that a party (the liable party) is to provide child support for a child to another party in the form of a lump sum payment (including by way of transfer or settlement of property); and

   (ii)  that the lump sum payment is to be credited against the amount payable under the liable party's liability under the relevant administrative assessment;

   (f)  provisions under which a party is to provide child support for a child to another party otherwise than in the form of periodic amounts and that are not non‑periodic payment provisions or lump sum payment provisions;

(g)  provisions under which the liability of a party to pay or provide child support for a child to another party is to end from a specified day.

1. Consent Orders issued in 2017 stated that the children were to live with Mr Daneman.  At the time, Mr Daneman was living in Brisbane and Ms Goring was living in Sydney.  (Both parents and the children have been living in Sydney since March 2020.)

2. The Consent Orders stated that the mother could have the children in her care ‘as agreed’, or failing agreement, on the fourth full weekend of each month (overnight).

3. The Binding Child Support Agreement states:

   ·Clause 7:  that the current Child Support Assessment be discharged.

   ·Clause 8:  that no child support payment be paid by the mother in the event she meets the full costs of her own travel, the children’s travel and the mother’s accommodation in Queensland to facilitate the mother’s time with the children pursuant to the terms of the Consent Orders.

4. There is no clause in the agreement that sets out how much child support would be payable if the mother did not meet the costs pursuant to the terms of the Consent Orders.  The tribunal therefore decided that the agreement did not meet any of the requirements set out at subsection 84(1) and is therefore not a Child Support Agreement.

DECISION

The decision under review is affirmed.