Haken and Tarreck (Child support)

[2022] AATA 639

Haken and Tarreck (Child support) [2022] AATA 639 (9 February 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/MC022752

APPLICANT:  Mr Haken

OTHER PARTIES:  Child Support Registrar

Miss Tarreck

TRIBUNAL:Member P Jensen

DECISION DATE:  9 February 2022

DECISION:

The decisions under review are set aside and, in substitution, Miss Tarreck’s applications to have Services Australia - Child Support collect the ongoing child support payable from 27 August 2021 and the child support arrears owing in respect of the period from 27 May 2021 to 26 August 2021 are refused.

CATCHWORDS

CHILD SUPPORT – registration details – application for collection of the maintenance liability – whether the application for collection and arrears should be accepted – whether conditions to refuse were met – the application for collection and arrears should be refused – decision under review set aside and substituted

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

1. Mr Haken and Miss Tarreck are the parents of [Child 1] and [Child 2]. A child support case was registered in August 2014 with what is commonly called the Child Support Agency or CSA. Mr Haken was assessed as the parent who was required to pay child support. From time to time the CSA informed the parents of Mr Haken’s rate of child support payable.

2. The actual payment of child support can be a private matter for the parents. Alternatively, it can be registered for collection by the CSA. When the child support case was registered, Miss Tarreck elected to not have the CSA collect the child support payable. In October 2016 she successfully applied to have the CSA collect the child support payable.

3. On 21 August 2020, Miss Tarreck once again elected to not have the CSA collect the child support payable. I will return to the circumstances surrounding that election shortly.

4. On 27 August 2021, Miss Tarreck applied to have the CSA collect the ongoing child support payable and certain arrears. The CSA decided to granted her application to collect the ongoing child support payable. It decided to refuse her application to collect nine months of arrears but it granted her application to collect three months of arrears, i.e. the arrears owing in respect of the period from 27 May 2021 to 26 August 2021. Mr Haken objected to those decisions. An objections officer affirmed the decisions. Mr Haken applied to the Tribunal for further review. I heard the matter on 8 February 2022. Mr Haken and Miss Tarreck gave sworn evidence by conference phone.

5. Miss Tarreck’s application to have the CSA collect the ongoing child support payable was made pursuant to section 39 of the Child Support (Registration and Collection) Act 1988 (“the Act”). Subsection 39(5) states:

   The Registrar must grant the application unless the Registrar is satisfied that: 

   (a)the payer of the liability has been complying with his or her child support obligations in relation to the payee; or 

   (b)the payer of the liability has satisfactorily explained and rectified a failure to comply with his or her child support obligations in relation to a payee; or 

(c)there are special circumstances that exist in relation to the liability that make it appropriate to refuse the application.

1. The central issue in this case is whether paragraph 39(5)(a) was satisfied. On Mr Haken’s account of events, when Miss Tarreck elected in August 2020 to not have the CSA collect the child support payable she made it clear to him that she did not require him to pay child support to her. He consequently did not make any child support payments. On his account of events, if, at any stage, she had requested payments, he would have made them.

2. Mr Haken provided text messages from 21 August 2020. They included the following (with minor typographical errors in the original):

Miss Tarreck:    … I’m happy to get Child support to stop taking your money. I never wanted that in the first place, they said I had to apply for it otherwise I couldn’t get ftb.

Mr Haken:       Yeah I was never eligible for Centrelink so I never bothered to apply for anything. Well let me know what you want to do in terms of child support, it doesn’t bother me either way.

Miss Tarreck:    I’ve changed it to private collect so they won’t take anything from you. They just advise an amount they think appropriate and it’s done through us I’m happy for it to stop.

Mr Haken:       Ok no worries then.

1. According to a CSA file note, Miss Tarreck also elected to have the CSA discharge the child support arrears owing as at 21 August 2020. That election is further evidence that Miss Tarreck did not want to receive child support from Mr Haken.

2. On 11 January 2022, Miss Tarreck provided written submissions to the Tribunal which included the following:

   When requesting private collect I did so in faith he would contribute to his children’s expenses. At the time I felt sorry for him that he was having a third child and thought he would make reasonable payments when he could. He now has a fourth child on the way but he needs to help pay for [Child 2] and [Child 1]’s expenses. He has never asked me or paid any amounts to me privately.

3. At the hearing, Miss Tarreck confirmed that when she elected in August 2020 to not have the CSA collect the child support payable, she “didn’t want any child support.” She explained that the children’s costs subsequently increased, which is why she applied to have the CSA collect the ongoing child support payable and arrears. She agreed that she had not asked Mr Haken to pay child support prior to making those applications.

4. I accept Mr Haken’s evidence that he did not make child support payments to Miss Tarreck during the period from 21 August 2020 to 27 August 2021 because she initially indicated that she did not want him to make such payments and she did not subsequently indicate a change in her position.

5. During the hearing I queried whether a payee’s request that the payer not pay child support might constitute special circumstances in relation to the payer’s child support liability which might make it appropriate to refuse an application to have the CSA collect the ongoing child support payable. As I explained during the hearing, I raised that issue and other issues in order to provide both parents with an opportunity to give evidence and make submissions on those issues. I explained that I would not make my decision until after the hearing.

6. I also noted that if Miss Tarreck’s application to have the CSA collect the ongoing child support payable from 27 August 2021 was refused, her application to have the CSA collect the arrears payable in respect of the preceding three months would also have to be refused. Both parents indicated that they wished to avoid such a result. Miss Tarreck wanted the CSA to collect the ongoing child support payable from 27 August 2021 and the arrears. Mr Haken was agreeable to the CSA collecting the ongoing child support payable from 27 August 2021 provided it did not collect the arrears in respect of the preceding three months. The difficulty with Mr Haken’s position was that if Miss Tarreck’s application to have the CSA collect the child support payable remained in force, her application to have the CSA collect the arrears in respect of the preceding three months also had to remain in force: subsection 39A(5) of the Act. There was discretion to refuse her application for the collection of three months’ arrears.

7. I noted a possible line of reasoning that would result in the refusal of the applications that Miss Tarreck lodged on 27 August 2021, which in turn would require the CSA to refund any child support payments that Mr Haken had made to it during the past six months. I explored the possibility of the parents reaching some agreement that might avoid such a possible result, whilst noting that neither parent was under any obligation to do so. Miss Tarreck accused me of being biased against her. I informed her that she could apply to have me recuse myself on that basis. She made that application. I refused her application and gave ex tempore reasons for that refusal.

8. The discussions continued. Mr Haken agreed that if Miss Tarreck asked the CSA to discharge the arrears owing in respect of the period from 27 May 2021 to 26 August 2021, and the CSA granted her request, those facts and his desire to have the CSA collect the child support payable from 27 August 2021 would weigh against a finding of special circumstances for the purpose of paragraph 39(5)(c) of the Act. The hearing concluded with Miss Tarreck stating that she would ask the CSA to discharge those arrears. After the hearing she made that request. The CSA initially indicated that it would discharge the arrears, but on further reflection it concluded that it could only do so if Miss Tarreck also elected to stop having the CSA collect the ongoing child support payable (i.e. the situation would be similar to what occurred in August 2020). The proposed practical solution was not available.

9. On 21 August 2020, Miss Tarreck elected to not have the CSA collect Mr Haken’s ongoing child support. Nevertheless, his assessed rate of child support was an accumulating debt that he owed to Miss Tarreck. To use the language of paragraph 39(5)(c), it was a “liability”. In my opinion, the fact that Miss Tarreck initially informed Mr Haken that she did not require him to pay her child support, and she did not subsequently ask him to pay her child support prior to lodging her application with the CSA on 27 August 2021, constitutes “special circumstances that exist in relation to the liability that make it appropriate to refuse the application.” The preferable decision at first instance was to refuse Miss Tarreck’s application to have the CSA collect the ongoing child support payable from 27 August 2021. If the CSA had made that decision, it would have also been required to refuse her application to have it collect the arrears owing in respect of the preceding three months. On review, those decisions will be substituted. It is a result that neither parent was seeking, but it is the result that flows from the application of the law to the particular facts of the case.

DECISION

The decisions under review are set aside and, in substitution, Miss Tarreck’s applications to have Services Australia - Child Support collect the ongoing child support payable from 27 August 2021 and the child support arrears owing in respect of the period from 27 May 2021 to 26 August 2021 are refused.